Patlaw Securities Pty Ltd v Simon Blackwood (Workers' Compensation Regulator)
[2015] QIRC 63
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- Patlaw Securities Pty Ltd v Simon Blackwood (Workers' Compensation Regulator)[2015] QIRC 63
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Patlaw Securities Pty Ltd v Simon Blackwood (Workers' Compensation Regulator)[2015] QIRC 63
Patlaw Securities Pty Ltd v Simon Blackwood (Workers' Compensation Regulator)[2015] QIRC 63
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Patlaw Securities Pty Ltd v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 063 |
PARTIES: | Patlaw Securities Pty Ltd (Appellant) v Simon Blackwood (Workers' Compensation Regulator) (Respondent) |
CASE NO: | WC/2014/326 |
PROCEEDING: | Appeal against a decision of Simon Blackwood |
DELIVERED ON: | 23 March 2015 |
HEARING DATE: | 23 March 2015
|
MEMBER: | Deputy President Kaufman |
ORDERS : |
|
CATCHWORDS: | WORKERS' COMPENSATION – APPEAL AGAINT DECISION – whether the injury arose out of or in the course of employment – onus of proof - Appeal dismissed. |
CASES: | Workers' Compensation and Rehabilitation Act 2003, s 32 State of Queensland (Queensland Health) AND Q-Comp AND Beverley Coyne 172 QGIG 1447 |
APPEARANCES: | P. Paterson, Manager Director of Patlaw Securities Pty Ltd, the Appellant. F. Lippett, of Counsel, directly instructed by the Workers' Compensation Regulator, the Respondent. |
Reasons for Decision
On 23 March 2015, I delivered my extemporaneous reasons for decision, these are those reasons, slightly edited:
- [1]On or about the 5th of July 2014, Mr Allen, who was a security guard employed by Patlaw, was on duty at Teys Meatworks on the night shift. He says that around 1 am on the Saturday morning, he rolled his right foot when he was taking some meat from the storeroom to give to an employee of Teys in accordance with normal procedure. He didn't report the incident. It was a roll of his foot. He said he continued to work after that. He worked out his shift and didn't see a doctor until the following Monday..
- [2]He broke the rules in that he didn't report the incident immediately, I accept that. He also broke the rules in later wearing a moon boot, I accept that…. He should have completed an incident report. He didn't do that.
- [3]There was no CCTV. You criticised the fact that the meatworker who was receiving the meat has not been called as a witness. As Mr Lippett points out, the meatworker may not have seen the rolling of the foot. Mr Allen may not have mentioned it to him. I can't draw too much of an inference one way or the other from the failure to call the meatworker.
- [4]As I tried to explain .. at the outset, because of the way the law is, [the appellant has] to prove a negative. That's very difficult. There's a case in the Industrial Court of Queensland by the name of Beverley Coyne,[1] … that says that on an appeal of this nature, it's for the appellant… to prove …on the balance of probabilities, (you bear the onus of persuading me) that the injury did not occur, and that's the only issue I have to deal with.
- [5]There's no doubt that Mr Allen was a worker for the purposes of the legislation. It's accepted that he suffered an injury, or an aggravation of an injury. That brings him within the definition of the Act. The only question is whether or not that injury arose out of or in the course of his employment.
- [6]Had the onus been on Mr Allen or the Regulator to demonstrate on the balance of probabilities that that's what happened, I may not have been persuaded that they had discharged that onus, but because of the decision in Coyne, that's not what I have to decide. I have to decide whether you have demonstrated on the balance of probabilities that the injury did not arise out of or in the course of the employment and, because there is no evidence that you can lead to show that it didn't arise out of or in the course of the employment, I can't be satisfied.
- [7]Now, personally, I have grave reservations whether Coyne is correct, but I'm bound by it and it hasn't been argued in front of me as to whether or not it's correct. That is why my view must be tentative. But it doesn't matter what my view of the law is, I'm bound by the decision of the Court and [the appellant has] not been able to persuade me …because there is no evidence to say that it didn't happen the way that Mr Allen says it did.
- [8]… Mr Allen may not have been able to persuade me that it happened the way he said it did, but that's not the issue here. You have to persuade me that it didn't happen the way Mr Allen said it did, and in the absence of any evidence to that effect, I can't be satisfied, and I have to dismiss your appeal.
- [9]I'm inclined to exercise my discretion against [the respondent] on the question of costs in this matter. The company could do not more than what it has done. Perhaps if a lawyer had appeared, the correctness or otherwise of Coyne might have been debated in front of me, but, I'm bound by it and all the company could really do to contest this is to come here and have Coyne applied and then test that further. So in those circumstances, I will not make any order as to costs.
Footnotes
[1] State of Queensland (Queensland Health) AND Q-Comp AND Beverley Coyne 172 QGIG 1447; (No. C90 of 2002).