Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QIRC
  3. 2015
  4. Sucrogen Australia Pty Ltd v Simon Blackwood (Workers' Compensation Regulator) - [2015] QIRC 74

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Sucrogen Australia Pty Ltd v Simon Blackwood (Workers' Compensation Regulator)[2015] QIRC 74

Sucrogen Australia Pty Ltd v Simon Blackwood (Workers' Compensation Regulator)[2015] QIRC 74

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Sucrogen Australia Pty Ltd v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 074

PARTIES:

Sucrogen Australia Pty Ltd

(Appellant)

v

Simon Blackwood (Workers' Compensation Regulator)

(Respondent)

CASE NO:

WC/2013/130

PROCEEDING:

Appeal against a decision of Simon Blackwood (Workers' Compensation Regulator)

DELIVERED ON:

27 April 2015

HEARING DATES:

16 September 2013

10 October 2013

MEMBER:

Deputy President Bloomfield

ORDERS:

  1. The Appeal is allowed.
  2. The Respondent is to pay the Appellant's costs of, and incidental to, the Appeal.

CATCHWORDS:

WORKERS' COMPENSATION - APPEAL AGAINST DECISION - motor vehicle accident during journey home from work - whether substantial interruption of journey - whether worker contravened section 328A of the Criminal Code - whether contravention was the major significant factor causing the accident - interruption to journey found not to constitute a substantial interruption - worker found to have contravened section 328A of Criminal Code - contravention was major significant factor causing the accident - appeal allowed.

CASES:

Workers' Compensation and Rehabilitation Act 2003, s 32, s 35, s 36

Criminal Code, s 328A

Teys Australia Food Solutions Pty Ltd v Q-COMP (First Respondent) and Tarralyn Polichronis (Second Respondent) (WC/2012/275) - Decision .

Walker v Wilson 1991 (65) ALJR 273.

McBride v The Queen (1966) 115 CLR 44.

Jiminez v R [1992] HCA 14.

N as Litigation Guardian for N1 and N2 v Q-COMP (unreported, Industrial Magistrates Court of Queensland, 8 December 2010).

Briginshaw v Briginshaw (1938) 60 CLR 336.

Coles Group Limited v Q-COMP (Industrial Magistrates Court of Queensland, 15 February 2011).

Coles Group Limited v Q-COMP (C/2011/10) - Decision .

APPEARANCES:

Mr C. J. Murdoch, Counsel instructed by Mr J. Fraccaro of Kaden Boriss Brisbane (formerly MVM Legal) for the Appellant.

Ms D. Callaghan, Counsel directly instructed by Simon Blackwood (Workers' Compensation Regulator), the Respondent, with Ms L. Sheild. 

DECISION

 Introduction

  1. [1]
    This decision relates to an Appeal by Sucrogen Australia Pty Ltd (Sucrogen), a self-insurer, against a decision of the Review Unit of the Workers' Compensation Regulator (the Regulator) to set aside an earlier decision of the self-insurer to reject an Application for workers' compensation lodged by Ms Latesha Abraham after she injured herself "after hitting another vehicle and rolling my car on the way home from work" on 1 September 2012. 
  1. [2]
    Sucrogen originally rejected Ms Abraham's Application for compensation on the basis she had not satisfied the criteria set out in section 36(2)(a)(ii) or section 36(2)(b)(i) of the Workers' Compensation and Rehabilitation Act 2003 (the Act).

Agreed facts

  1. [3]
    The parties to the hearing submitted the following agreed facts, which have been supplemented by me (in italics) to include several non-controversial additional facts established in evidence.

 1. Latesha Abraham, the worker, worked a 12 hour shift from 6am to 6pm on 1 September 2012 (at Victoria Sugar Mill, just outside Ingham).

 2. The worker was rostered to work a 12 hour shift from 6am to 6pm on 2 September 2012.

  1. Kurt Venables was also rostered on 12 hour shifts from 6am to 6pm on 1 and 2 September 2012. 
  1. The worker punched out on her timecard on the Kronos system at 6.01pm on 1 September 2012.
  1. The worker entered the carpark area at around 18.04 (time recorded on the DVD surveillance tape) on 1 September 2012.
  1. The worker reached her car at approximately 18.04.21.  (She first went to her driver's side door and then immediately went around to the driver's side door of Mr Venables' car, which was parked next to her car. 
    Mr Venables had entered the car park and walked to his car earlier.)
  1. The worker had a conversation with Mr Venables before getting into her car about approximately 18.18.03.
  1. The worker then drove out of the car park.
  1. The worker drove to Ingham to fill her car with fuel at a service station (westbound via Victoria Mill Road and then along Cartwright Street).
  1. On leaving the service station, she drove back eastbound along Cartwright Street and then Victoria Mill Road (heading towards her home at Halifax, some 13.9kms to the north-east of Victoria Sugar Mill). 
  1. The worker was involved in a motor vehicle accident on Victoria Mill Road between Palm Creek Road and Sachs Rd, Ingham, between 6.30 and 6.40 pm on 1 September 2012.

 The legislation

  1. [4]
    By section 32 of the Act a person will suffer an injury where:
  • a personal injury exists;
  • the personal injury arose out of, or in the course of, employment; and
  • employment is a significant contributing factor to the injury.
  1. [5]
    Pursuant to section 32(2) of the Act, employment need not be a significant contributing factor to the injury if section 35(2) applies.  Relevantly, section 35 states:

 "35  Other circumstances

  1. (1)
    An injury to a worker is also taken to arise out of, or in the course of, the worker's employment if the event happens while the worker—
  1. (a)
    is on a journey between the worker's home and place of employment;

…

  1. (2)
    For subsection (1), employment need not be a contributing factor to the injury."
  1. [6]
    Where section 35 applies, the provisions of section 36 must also be considered.  This section relevantly provides:

"36  Injury that happens during particular journeys

  1. (1)
    This section applies if a worker sustains an injury in an event that happens during a journey mentioned in section 35.
  1. (2)
    The injury to the worker is not taken to arise out of, or in the course of, the worker's employment if the event happens—
  1. (a)
    while the worker is in control of a vehicle and contravenes—
  1. (i)
    …
  1. (ii)
    the Criminal Code, section 328A … if the contravention is the major significant factor causing the event; or
  1. (b)
    during or after—
  1. (i)
    a substantial delay before the worker starts the journey; or
  1. (ii)
    a substantial interruption of, or deviation from, the journey.

 …

  1. (5)
    For subsection (2)(b)(ii), in deciding whether there has been a substantial interruption of, or deviation from the journey, regard must be had to the following matters—
  1. (a)
    the reason for the interruption or deviation;
  1. (b)
    the actual or estimated period of time for the journey in relation to the actual or estimated period of time for the interruption or deviation;
  1. (c)
    …" (my emphasis).

Matters requiring determination

  1. [7]
    As a result of concessions made and/or agreements reached between Mr Murdoch, who appeared for Sucrogen, and Ms Callaghan, who appeared for the Regulator, there are only two matters which require determination, viz:
  • whether the 13 minutes and 42 seconds spent by the worker in conversing with Mr Venables in the car park constitutes a substantial interruption, (within the meaning of sections 36(2)(b)(ii) and (5) of the Act) of her journey home from work on the evening of 1 September 2012; and
  • whether the provisions of section 36(2)(a)(ii) of the Act operate to exclude the worker's injury from the definition of injury at section 32(1) of the Act. 
  1. [8]
    In reaching agreement that only the above two matters require decision the parties agree that the worker's journey commenced immediately after she clocked off on the Kronos system at 6.01 pm (Teys Australia Food Solutions Pty Ltd v Q-COMP and Polichronis[1]).  Further, Sucrogen does not call into question Ms Abraham's trip to the service station to re-fuel her vehicle as an interruption of, or deviation from, her journey. 

Substantial interruption?

  1. [9]
    In deciding whether the 13 minute and 42 second conversation between Ms Abraham and Mr Venables constitutes a substantial interruption of Ms Abraham's journey, section 36(5) requires the Commission to have regard to the reason for the interruption and the actual or estimated period of time for the journey compared to the length of the interruption.
  1. [10]
    In terms of the reason for the interruption, Ms Abraham's said she went to talk to Mr Venables after she saw him in the car park because "we were seeing each other".  Apart from asking him how his day had gone she did not remember anything else about the conversation.  After she finished speaking to him she drove into Ingham to fill up with petrol because her fuel tank was on empty and the petrol station in Halifax closed at 6 pm. 
  1. [11]
    In terms of the length of the interruption compared to the estimated time of the journey Ms Abraham proposed to undertake that evening, the evidence contains some conflicts.  Mr Morrow, the site manager of Victoria Mill, said the distance between the car park and the service station in Ingham was 5.2 kilometres and he had timed that journey to take 5 and a-half minutes between 6 and 6.30 pm on a weekday evening.  By contrast, Ms Abraham gave a lower estimate of four to five minutes.  Given that it would take a driver 5 minutes and 12 seconds to travel 5.2 kilometres at 60 kilometres an hour I am content to adopt Mr Morrow's timing of 5 minutes and 30 seconds as a good estimate.  Allowing for five minutes to re-fuel and pay at the console, the trip from the Mill to the service station and return would have taken approximately 16 minutes. 
  1. [12]
    Insofar as the time it would take to travel from the Mill to Ms Abraham's home in Halifax, Ms Abraham estimated the trip would usually take between 15 and 20 minutes but also said that when she actually timed it, at 4 pm one afternoon, it took 18 minutes.  This timing was disputed by Mr Morrow who said he had timed the trip to take approximately 10 to 10 and a-half minutes at 11 am one morning.  He said he had travelled between Halifax and the Mill "thousands of times" and strongly disputed it would take 15 to 20 minutes.  However, he later conceded that it might take 15 minutes, "very rarely", if he was held up at a rail crossing or by other vehicles on the road.  Mr Morrow also said that the time taken to travel between Halifax and Victoria Mill via Cooks Lane (the route he had taken) or via Mill Road (the route Ms Abraham had taken) was "exactly the same", albeit that he had not measured the respective routes or compared the time it took to travel by each route. 
  1. [13]
    By my calculation, travelling 13.9 kilometres (the distance measured by Ms Abraham travelling via Mill Road) at 80 kilometres an hour would take just under 10 minutes and 30 seconds (the time taken by Mr Morrow travelling via Cooks Lane).  Travelling the same distance of 13.9 kilometres at an average speed of 60 kilometres per hour would take 13.9 minutes. 
  1. [14]
    In the circumstances, I have settled on a time of 12 minutes and 30 seconds as representing a reasonable average of the time it would take Ms Abraham to travel between Victoria Mill and her home in Halifax.  Consequently, on my calculation, the likely duration of Ms Abraham's trip home on the night in question, including the time taken to travel into Ingham, re-fuel and retrace her steps to Victoria Mill, would have been 28 minutes and 30 seconds. 
  1. [15]
    However, given the concession by Sucrogen at paragraph 29 of its written submissions that I should adopt a period of approximately 30 minutes for the journey I am content to take that course.  Having done so, the question which requires ultimate determination is whether an interruption of 13 minutes and 42 seconds in a 30 minute journey should be regarded as a substantial interruption within the meaning of sections 36(2)(b)(ii) and (5) of the Act.
  1. [16]
    In Walker v Wilson[2] Brennan J said:

"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."

  1. [17]
    This point was essentially confirmed by Deane, Dawson, Toohey and McHugh JJ at [279] in the same decision where they stated: "… what constitutes a 'substantial interruption' must be determined by reference to all the relevant circumstances."
  1. [18]
    In the circumstances of this case there are a number of facts and factors which have led me to conclude that the interruption to Ms Abraham's journey was not substantial.  In arriving at this conclusion I have taken into account the following matters:
  • Ms Abraham had only turned 20 a few months before the incident;
  • Mr Venables (who I saw in the precinct of the Court) was of a similar age;
  • they had just started "seeing each other";
  • the time/day in question was early on a Saturday evening, when other people their age might reasonably expect to be spending time with each other;
  • they had both just worked a 12 hour shift;
  • they were both scheduled to work another 12 hour shift commencing at
    6 am the following day;
  • apart from this conversation they would not see each other for (at least) another 24 hours;
  • although Ms Abraham had clocked off from work, the conversation with Mr Venables took place in the car park and not, for example, at the local McDonalds outlet, which is adjacent to the service station she visited on the evening in question, or at a Hotel; and
  • a 13 minute and 42 second "catch-up" in all of the above circumstances is perfectly understandable and justifiable.

Section 328A of the Criminal Code

  1. [19]
    Relevantly, section 328A of the Criminal Code states:

 "(1) A person who operates, or in any way interferers with the operation of, a vehicle dangerously in any place commits a misdemeanour."

 …

 "(6) …

  operates, or in any way interferes with the operation of, a vehicle dangerously means operate, or in any way interferes with the operation of, a vehicle at a speed or in a way that is dangerous to the public, having regard to all the circumstances…"

  1. [20]
    Sargent G. Tantalo of the Queensland Police Service gave evidence about his attendance at the scene of an accident on the Victoria Mill Road, between Palm Creek Road and Sachs Road, on the evening of 1 September 2012.  His record of attendance at the scene and subsequent interview with Ms Abraham is recorded in the Queensland Police Services' QPRIME system, which inter alia contained the following information:

 Unit details

 Unit No. 001 - Daewoo Hatchback, driven by Ms Abraham

 Unit No. 002 - Toyota Hilux

 Crash description

Unit 1 was travelling east on Victoria Mill Road, Ingham.  Unit 2 was travelling in front of Unit 1 and also heading east on Victoria Mill Road, Ingham.  Unit 1 has collided with the rear of Unit 2 and both vehicles have spun out of control and overturned.  Both units have come to rest off the carriageway on the northern side of the road.  Unit 1 overturned onto its top and unit 2 overturned onto its driver's side.

  1. [21]
    The record of interview between Sargent Tantalo and Ms Abraham, at the Halifax Police Station on a later (unrecorded) date, included the following exchanges:

 "Q.   Can you give me your version of what happened?

  1. I saw his light come on, that's when I hit my brakes and swerved.  When the glass smashed I closed my eyes.

Q. Which way did you swerve?

A. Into the oncoming lane.

Q. Where was the impact on your car?

A. From the left of my car hit the right of his car.

Q. How far behind the other vehicle were you travelling?

A.  Not too close.

Q.  What were you doing at the time of the crash?

A. I had already changed the gears and put my hand on the gear stick, just checked it like that (demonstrated patting motion with hand).  I had both hands back on the steering wheel and looking straight ahead and saw the brake lights and put the brakes on, swerved but hit him.

Q. Did your vehicle make any skidding noises?

A. Yes. I heard noises.

Q. How far behind were you travelling at this time?

A.  Not sure.

Q. What was the speed of your vehicle prior to the crash?

A. Not sure.

Q.  Where did you drive from?

A. Shell Servo in Ingham.

Q. Where were you driving to?

A. Home.

Q. Have you consumed any Drugs or Alcohol in the past 24 hours?

A. No.

Q.  Have you worked in an Industrial Environment in the last 24 hours?

A. Yes.

Q. What type of work, gasses, sprays, chemicals etc

A. No.

Q.  Is your vehicle in a roadworthy condition?

A. Yes.

Q. Have you had any problems with the vehicles brakes previously?

A.  No. Just back from service a couple of weeks ago.

Q. What in your opinion caused the traffic crash?

A. I guess I didn't stop in time.

Q.  What could you have done different?

A.  Not driven this way."

  1. [22]
    Sargent Tantalo said that after investigation and consideration he subsequently issued Ms Abraham with an infringement notice under Regulation 126 of the Transport Operations (Road Use Management - Road Rules) Regulation 2009 which alleged she was following another vehicle too closely.  From his understanding the infringement notice had been paid in that he had not received a notification the matter was to go to trial or that it was still outstanding.
  1. [23]
    Sargent Tantalo said that the speed limit, at that time, was 100 kilometres per hour (it was subsequently reduced to 80 kilometres per hour) and the road was of straight alignment, sealed, dry and relatively level with no curves or undulations.  It was a dual carriageway road with a single divided line.  The atmospheric conditions were clear and he put the time of the crash as around dusk.
  1. [24]
    In the course of her examination in chief, Ms Abraham gave the following evidence:
  • "I was just driving along and then my car sounded like it was over-revving a little bit.  So I glanced down to check that I was in fifth gear and then when I looked up I'm not sure if the car in front of me was braking or if they'd just put their lights on, but I saw the red lights.  So I remember just thinking, 'I have to put my brakes on and swerve now otherwise I will die.'";
  • She was travelling at 100 kilometres an hour at the time;
  • "It was coming onto dark. It was quite dark. Like it was - you could just see, but you should have really had your traffic lights on by then";
  • She noticed the Hilux in front of her "Just when I - when I crashed into it.  Like, it - I kind of just - I wasn't really aware that it was there the whole time.  But then when I looked up it was kind of like 10 seconds before I was about to hit it that I was just aware that the car was there.";
  • She obtained her P1 licence (red P plates) in June of 2012. 
  1. [25]
    In the course of cross-examination the following exchange occurred between
    Mr Murdoch and Ms Abraham:

MR MURDOCH: "Now, you've mentioned in the course of your evidence-in-chief that you changed gears, did you?---Yeah. Well, I was already in fifth but then, because I could kind of hear it, it sounded like it was over-revving, I just had to glance down to check that I was actually in fifth and not fourth. But I was in fifth.

Now, can I suggest to you that when you glanced back up, you saw the brake light come on, on the Hilux vehicle in front of you?---Mmhmm. Yes. But I don't know for sure if it was his brake lights coming on or just him turning his lights on because there's no real reason why he would need to brake on that road.

Well, do you say he turned his - are you suggesting that he turned his - the vehicle - turned the vehicle lights on?---Yeah. Because it was at that time of day - - -

Not his brake lights?--- - - -where you could have - you could have had them not on and it would have been fine, but they should have been on.

Yes?---So I think they've just been driving home and then realised, “Oh, we should we have our lights on” and then turned them on. 

But in any event you saw the brake lights come on, didn't you?---Yeah.

Now, so you saw the brake lights come on. Did you then apply your brakes?---Yeah.

And what happened as a result of you applying your brakes?---Well, I had to apply my brakes and swerve otherwise I would have just hit straight, front on into him.

So the vehicle in front of you was so close that you had to swerve- - -?---Yeah.

- - - after applying the brakes- - -?---Yeah.

- - - to avoid hitting that vehicle head on? And by head on I mean the front of your car going directly into the back of his car?---Yeah.

And so you elected to swerve?---Yeah.

And you swerved and the left of your car hit the right of his car?---Yeah.

Correct?---Yeah.

And following on from that contact, your car rolled?---Yeah.

And his Toyota Hilux went onto its side?---Yeah.

Now, on your version of events from you - or as I understand your version of events and if I've got it wrong, please tell me - from you looking up and seeing the brake lights come on, until you're ultimately making contact with the Hilux, everything happened very quickly?---Yeah."

  1. [26]
    In the case of McBride v The Queen[3], Barwick CJ considered the term "at a speed or in a manner which is dangerous to the public" contained in section 52A of the Crimes Act 1900 (NSW) and made the following statement:

"This section speaks of a speed or manner which is dangerous to the public.  This imports a quality in the speed or manner of driving which either intrinsically in all circumstances, or because of the particular circumstances surrounding the driving, is in a real sense potentially dangerous to a human being or human beings who as a member or as members of the public may be upon or in the vicinity of the roadway on which the driving is taking place.  It may be, of course, that potential danger to property on or in the vicinity to that roadway would suffice to make the speed or manner of driving dangerous to the public, ...

This quality of being dangerous to the public in the speed or manner of driving does not depend upon resultant damage, though to complete the offence under the section, impact causing damage must occur during that driving.  Whilst the immediate result of the driving may afford evidence from which the quality of the driving may be inferred, it is not that result which gives it that quality.  A person may drive at a speed or in a manner dangerous to the public without causing any actual injury: it is the potentiality in fact of danger to the public in the manner of driving, whether realized by the accused or not, which makes it dangerous to the public within the meaning of the section."

  1. [27]
    In the later case of Jiminez v R[4] a Full Bench of the High Court (Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron JJ) again considered the term "at a speed or in a manner dangerous to the public" under section 52A of the Crimes Act 1990 (NSW) and said at [13]:

"For the driving to be dangerous for the purposes of s.52A there must be some feature which is identified not as a want of care but which subjects the public to some risk over and above that ordinarily associated with the driving of a motor vehicle, including driving by persons who may, on occasions, drive with less than due care and attention (7) McBride v. The Queen (1966) 115 CLR, per Barwick C.J. at pp 50, 51.

…

But it should be emphasized, and it must always be brought to the attention of the jury, that the condition of a driver must amount to something other than a lack of due care (10) McBride v The Queen (1966) 115 CLR, per Barwick C.J. at p 50, before it can support a finding of driving in a manner dangerous to the public.  Driving in that condition must constitute a real danger to the public.  As Barwick C.J. said in McBride v The Queen (11) ibid., at pp 49-50.

 'The section speaks of speed or manner which is dangerous to the public.  This imports a quality in the speed or manner of driving which either intrinsically in all circumstances, or because of the particular circumstances surrounding the driving, is in a real sense potentially dangerous to a human being or human beings who as a member or as members of the public may be upon or in the vicinity of the roadway on which the driving is taking place.'".

  1. [28]
    In the Queensland case of N as Litigation Guardian for N1 and N2 v Q-COMP[5] Industrial Magistrate Morrow was required to consider the term "operates a vehicle at a speed or in a way that is dangerous to the public, having regard to all the circumstances" in section 328A of the Criminal Code and observed:

"[104]The essence of the offence is driving in a manner which any ordinary person in the situation of the driver would recognise as dangerous in the sense that it involves a risk of injury to others which exceeds the ordinary risks of the road:  R v Coventry [1938] SASR 79.  There must be some feature which is identified not as a want of care but which subjects the public to some risk over and above that ordinarily associated with the driving of a motor vehicle, including driving by a person who may, on occasions, drive with less than due care and attention: Jiminez v R (1992) 173 CLR 572.

[105]There is no requirement that actual injury be caused; the offence of dangerous driving is complete if it is proved that the actions of the driver create a danger real or potential to the public: R v Coventry (1938) 59 CLR 633; R v McBride [1966] ALR 753; [1965] 40 ALJR 57; Wynwood v Williams (2000) 30 MVR 476; [2000] TASSC 28.  There is no requirement that the driver is aware of the actual or potential danger: R v Coventry, at 639."

  1. [29]
    Reference was also made by Mr Murdoch to the Supreme and District Courts' Bench Book which requires the following direction to be given to a jury with respect to a criminal trial for breach of section 328A of the Criminal Code:

"The prosecution must prove that there was a situation which, viewed objectively, was dangerous.  For the driving to be dangerous, there must be some feature which is identified not as mere want of care, but which subjects the public to some risk over and above that ordinarily associated with the driving of a motor vehicle, including driving by a person who may on occasion drive with less then [sic] due care and attention.

Momentary lapses of attention on the part of the driver, if they result in danger to the public, are not outside the ambit of the offence of dangerous operation of a motor vehicle merely because they are brief or momentary.  If a driver adopts a manner of driving which is dangerous in all the circumstances of the case to other road users it does not matter whether they are deliberately reckless, careless, momentarily inattentive or even doing their incompetent best.  However, the prosecution must prove that there was some serious breach of the proper conduct of the vehicle upon the roadway, so serious as to be in reality, and not speculatively, potentially dangerous to others. 

The consequences of the defendant's acts or omissions cannot add to the criminality of his driving.  The quality of being dangerous to the public does not depend on the resultant damage.  Whilst the immediate result of driving may afford evidence from which the quality of driving may be inferred, it is not the result which gives that quality. (McBride)".

  1. [30]
    After carefully considering the evidence and the submissions to which I have been referred I have reached the conclusion that Ms Abraham's driving at the time of her accident on 1 September 2012 involved a breach of section 328A of the Criminal Code in that she was operating her vehicle at a speed or in a way that was dangerous to the public, having regard to all the circumstances.
  1. [31]
    In reaching this conclusion I have taken into account the following facts:
  • Ms Abraham was a relatively inexperienced driver, having held her driving licence for something of the order of 3 months;
  • she had just completed a day shift of 12 hours duration;
  • she was driving to the east at dusk - a time of day when additional care and attention is required because of the potential for other drivers, especially those driving west towards a brighter background, to have forgotten to turn their lights on;
  • despite the time of day, and having worked a 12 hour shift, she was driving at, what she believes was, a speed of 100 kilometres an hour which, although it was the speed limit at the time, was probably too fast given her relative inexperience as a driver, the time of day (dusk), and the potential for her mental alertness to be somewhat "jaded" after having worked a 12 hour shift;
  • Ms Abraham understood that the road she was travelling on had the potential to be carrying other traffic at the time;
  • Ms Abraham admitted that she could not stop in time after she observed the vehicle in front of her applying its brakes;
  • the fact she saw the brake lights come on discounts any suggestion that she was inadvertently distracted and did not see the brake lights for a period of time;
  • after seeing the other vehicle's brake lights come on she applied her own brakes and attempted to take evasive action by swerving to the right;
  • notwithstanding that she applied her own brakes and swerved to the right she still hit the vehicle travelling in front of her with sufficient force to cause the driver of the other vehicle to lose control and for the vehicle to overturn onto its drivers side, with her own vehicle losing control and overturning onto its roof;
  • this outcome is evidence of a significant disparity between the speed of each of the vehicles - with the vehicle being driven by Ms Abraham obviously travelling at a speed well in excess of the other vehicle; and
  • her decision to swerve into the oncoming lane took no account of the potential for another vehicle to be travelling westward toward Ingham, with or without its lights on (see the point made above).  
  1. [32]
    As Mr Murdoch observed in his submissions, it is not to the point that the Queensland Police Service did not press for a conviction under section 328A of the Criminal Code.  It is sufficient for Sucrogen to prove a contravention of the Code to the civil standard, taking into account the decision in Briginshaw v Briginshaw[6] (see Coles Group Limited v Q-COMP[7] endorsed on Appeal in matter C/2011/10[8], released on 27 June 2011). 
  1. [33]
    On my consideration of the evidence, the major significant factor which caused Ms Abraham to be injured on her homeward journey on the evening of 1 September 2012 was that she was operating her vehicle at a speed or in a way that was dangerous to the public, having regard to all the circumstances.

Summary

  1. [34]
    For the reasons set out above I conclude:
  • the 13 minute and 42 second interruption of Ms Abraham's journey home from work on the evening of 1 September 2012 was not a substantial interruption of her journey within the meaning of sections 36(2)(b)(ii) and (5) of the Act;
  • Ms Abraham's contravention of section 328A of the Criminal Code was the major significant factor causing her motor vehicle accident and resultant injuries on the evening of 1 September 2012. 
  1. [35]
    Given the above, it follows that the provisions of section 36(2)(a)(ii) operate to exclude Ms Abraham's injuries on the night in question as compensable in that this section, once enlivened, deems Ms Abraham's injuries to not have arisen out of, or in the course of, her employment.  As a result, her injury is excluded from the definition of "injury" at section 32(1) of the Act. 

Conclusion

  1. [36]
    I uphold Sucrogen's Appeal against the decision of the Regulator to overturn its original decision to reject Ms Abraham's application for Workers' Compensation.  The Regulator is to pay Sucrogen's costs of, and incidental to, the Appeal with recourse available to the Commission as presently constituted if the parties are unable to agree on the amount of the costs involved.
  1. [37]
    I determine and Order accordingly.

Footnotes

[1] Teys Australia Food Solutions Pty Ltd v Q-COMP (First Respondent) and Tarralyn Polichronis (Second Respondent) (WC/2012/275) - Decision .

[2] Walker v Wilson 1991 (65) ALJR 273 at [276].

[3] McBride v The Queen (1966) 115 CLR 44 at [49-51].

[4] Jiminez v R [1992] HCA 14.

[5] N as Litigation Guardian for N1 and N2 v Q-COMP (unreported, Industrial Magistrates Court of Queensland, Morrow M, 8 December 2010).

[6] Briginshaw v Briginshaw (1938) 60 CLR 336.

[7] Coles Group Limited v Q-COMP (Industrial Magistrates Court of Queensland, Callaghan CJ, 15 February 2011).

[8] Coles Group Limited v Q-COMP (C/2011/10) - Decision .

Close

Editorial Notes

  • Published Case Name:

    Sucrogen Australia Pty Ltd v Simon Blackwood (Workers' Compensation Regulator)

  • Shortened Case Name:

    Sucrogen Australia Pty Ltd v Simon Blackwood (Workers' Compensation Regulator)

  • MNC:

    [2015] QIRC 74

  • Court:

    QIRC

  • Judge(s):

    Bloomfield DP

  • Date:

    27 Apr 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Briginshaw v Briginshaw (1938) 60 C.L.R 336
2 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
Coles Group Limited v Q-COMP [2011] ICQ 18
2 citations
Jump To
Cite 1 - [2011] ICQ 18
Cite 2 - [2011] ICQ 18
Jiminez v R (1992) 173 CLR 572
1 citation
Jump To
Cite 1 - (1992) 173 CLR 572
Jiminez v The Queen [1992] HCA 14
2 citations
Jump To
Cite 1 - [1992] HCA 14
Cite 2 - [1992] HCA 14
McBride v The Queen (1966) 115 CLR 44
2 citations
Jump To
Cite 1 - (1966) 115 CLR 44
Cite 2 - (1966) 115 CLR 44
McBride v The Queen (1965) 40 ALJR 57
1 citation
Jump To
Cite 1 - (1965) 40 ALJR 57
R v Coventry [1938] SASR 79
1 citation
Jump To
Cite 1 - [1938] SASR 79
R v McBride [1966] ALR 753
1 citation
Jump To
Cite 1 - [1966] ALR 753
The King v Coventry (1938) 59 CLR 633
2 citations
Jump To
Cite 1 - (1938) 59 CLR 633
Cite 2 - (1938) 59 CLR 633
Walker v Wilson (1991) 65 ALJR 273
2 citations
Jump To
Cite 1 - (1991) 65 ALJR 273
Cite 2 - (1991) 65 ALJR 273
Wynwood v Williams (2000) 30 MVR 476
1 citation
Jump To
Cite 1 - (2000) 30 MVR 476
Wynwood v Williams [2000] TASSC 28
1 citation
Jump To
Cite 1 - [2000] TASSC 28

Cases Citing

Case NameFull CitationFrequency
McCool (as administrator of the estate of Shane Patrick McCool) v Workers' Compensation Regulator [2021] QIRC 3742 citations
1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.