CITATION: | Workers Compensation Regulator v McCool (as administrator of the estate of Shane Patrick McCool) [2022] ICQ 4 |
PARTIES: | Workers' Compensation Regulator Appellant v McCool (as administrator of the estate of Shane Patrick McCool), Toni Michelle Respondent |
CASE NO: | C/2021/24 |
PROCEEDING: | Appeal pursuant to s 557 of the Industrial Relations Act 2016 (Qld) |
DELIVERED ON: | 21 February 2022 |
HEARING DATE: | 31 January 2022 |
MEMBER: HEARD AT: | O'Connor VP BRISBANE |
ORDER: |
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CATCHWORDS: | INDUSTRIAL LAW – APPEAL – WORKERS' COMPENSATION REGIME – JOURNEY PROVISIONS – MEANING OF SUBSTANTIAL INTERRUPTION – where Commissioner overturned decision of the Regulator at first instance – where Commissioner found worker's journey was within s 35 of Workers' Compensation Rehabilitation Act – where Commissioner found journey not excluded by s 36 of the same Act – whether Commissioner erred in finding of fact – whether open for Commission to find in favour of the worker on the evidence available |
LEGISLATION: | Industrial Relations Act 2016 (Qld) s 557 Workers' Compensation and Rehabilitation Act 2003 (Qld) ss 32, 35, 36 |
CASES: | Davidson v Blackwood [2014] ICQ 8 Masters Home Improvement Pty Ltd v North East Solutions Pty Ltd (2017) 372 ALR 440 McCool v Workers' Compensation Regulator [2021] QIRC 374 Walker v Wilson (1991) 172 CLR 195; (1991) 65 ALJR 273 Workers’ Compensation Regulator v Queensland Nurses and Midwives’ Union of Employees (No 2) |
APPEARANCES: | Mr S. McCleod QC of counsel for the Appellant, instructed by Ms C. Godfrey of Crown Law No Appearance for the Respondent |
Reasons for Decision
Background
[9] The agreed facts between the parties were as follows:
[10]Importantly, key facts that can be distilled from the agreed facts are:
Grounds of Appeal
1.The Industrial Commissioner erred in finding that s 36 of the Workers' Compensation and Rehabilitation Act (2003) Qld ('the WCR Act') was not activated to exclude the Respondent's claim for compensation because there was insufficient evidence available to conclude that there was a substantial interruption to Mr McCool's journey.
2.In reaching the finding, referred to in ground 1 above, the Industrial Commissioner did so on a basis:
(a)which was entirely contrary to the respondent's case on appeal;
(b)reached the said finding when an express finding was made that 'there is simply no evidence to explain the delay at all', but proceeded to hold that 'the absence of an explanation for a substantial interruption in circumstances where "the worker is now deceased should not, of itself, be a barrier to the claim succeeding"';
(c)in reaching the finding, referred to in ground 2(b) above, the Industrial Commissioner erred that such a finding was relevant to a consideration and determination of s36 of the WCR Act when, in the circumstances of this case, it was irrelevant to do so.
The Application of s 36 of the WCR Act
36Injury that happens during particular journeys
…
…
The Decision of the Commission
In my opinion, substantiality is to be assessed by reference to the circumstances of each case which include not only the terms and conditions of a worker's employment but also the exigencies of the journey and the personal circumstances of the worker. (Emphasis added)
What constitutes a substantial interruption must be determined by reference to all of the relevant circumstances.[7]
[55]However, on the evidence, it is not possible for me to determine what the length of the actual interruption was to the journey, only the amount of time that exceeds the estimate.
[56]The contention of the Regulator is that there was a substantial interruption, and that the interruption was not connected with the employment or beyond Mr McCool's control. There is no more firm contention other than a reference to the amount of time that is involved.
[57]I am content to accept by reference purely to the time involved that the journey taken by Mr McCool was interrupted. I am less comfortable with an inference that the entire five to six unexplained hours constitutes the entirety of the interruption to be considered for the purposes of determining substantiality.
[58]I am of this view because of the particular circumstances of this case, namely that Mr McCool was very ill when he commenced the journey. One of his symptoms included fatigue. Before departing the mine site, Mr McCool discussed with the on-site paramedic that he would take a break in Moranbah. Further, the paramedic recommended to Mr McCool that he should take breaks if he was fatigued. Having regard to the body camera audio it was clear that Mr McCool told the police that he did take at least one break (that we know of) at about 8.30pm on the evening of 22 August 2017.
...
[65]In short, there is simply no evidence to explain the delay at all. All that can be reliably established by the facts before me is that Mr McCool was engaged in a journey from his place of work to his place of abode at the time of the motor vehicle accident. For reasons entirely unknown, that journey took some five to six hours longer than it should have taken. The delay alone is not enough for the exclusion to apply, especially when there is at least one theory consistent with a legitimate reason for the interruption.
[66] The only theory for the delay that could sensibly be developed on the known facts is that the delay could be substantially explained by steps taken by Mr McCool to manage his fatigue during the journey. Having regard to all of the known circumstances, it is possible that Mr McCool took multiple breaks or even one long one. I am mindful that even though I consider this theory is plausible, I cannot confidently make a finding to that effect on the balance of probabilities. However, the absence of an explanation for a substantial interruption in circumstances where the worker is now deceased should not, of itself, be a barrier to the claim succeeding.
[67] Ultimately, I am not satisfied by reference to the time taken for the journey alone that I can conclude that there was a substantial interruption to the journey. In those circumstances I consider that there is insufficient evidence available in this matter to activate the exclusions found in s 36 of the Act.[8]
Costs
558 Powers of appeal body
[24] It was a further ground of appeal that the appellant should not have been ordered to pay the costs of the appeal to the Commission. The appellant’s application for compensation was rejected. The appeal to the Commission failed. There was nothing put by way of argument which would remove this matter from the ordinary case where costs follow the event.[13]
In my view, the legislature has clearly deliberately limited the costs which can be recovered on an appeal to the QIRC. It has drawn a clear distinction between different parts of the appeal process. While the legislation envisages that the appeal process may involve a conference, no power to award costs associated with a conference is given. The costs are limited to the “costs of the hearing”.[15]
Order
1.Appeal allowed.
2.The decision of the Queensland Industrial Relations Commission in WC/2019/42 given on 27 October 2021 is set aside.
3.The decision of the Appellant dated 28 February 2019 is confirmed.
4.The Respondent to pay the Appellant's costs of the hearing before the Queensland Industrial Relations Commission.
5.There is no order as to costs of the appeal to the Court
[1] [2021] QIRC 374 ('McCool').
[2] Appellant's outline of argument filed 8 December 2021.
[3] Email of Kendell Bocos to the Industrial Registry sent 22 December 2021 on behalf of the Respondent.
[4] McCool (n 1) [9]-[10].
[5] McCool (n 1) [65].
[6] (1991) 172 CLR 195; (1991) 65 ALJR 273, [276].
[7]McCool (n 1) [60].
[8] Ibid [55]-[67].
[9] Ibid [66].
[10] Ibid [67].
[11] Masters Home Improvement Australia Pty Ltd v North East Solutions Pty Ltd (2017) 372 ALR 440, 466 [101]-[102].
[12] [2014] ICQ 8.
[13] Ibid [24].
[14] [2021] ICQ 13.
[15] Ibid [29].
