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  4. McCool (as administrator of the estate of Shane Patrick McCool) v Workers' Compensation Regulator - [2021] QIRC 374

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McCool (as administrator of the estate of Shane Patrick McCool) v Workers' Compensation Regulator[2021] QIRC 374

McCool (as administrator of the estate of Shane Patrick McCool) v Workers' Compensation Regulator[2021] QIRC 374

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

McCool (as administrator of the estate of Shane Patrick McCool) v Workers' Compensation Regulator [2021] QIRC 374

PARTIES:

McCool (as administrator of the estate of Shane Patrick McCool), Toni Michelle

(Appellant)

v

Workers' Compensation Regulator

(Respondent)

CASE NO:

WC/2019/42

PROCEEDING:

Appeal against a decision of the Workers' Compensation Regulator

DELIVERED EX TEMPORE ON:

27 October 2021

HEARING DATE:

26 October 2021

MEMBER:

Dwyer IC

HEARD AT:

Townsville

ORDER:

  1. The appeal is allowed; and
  1. In the absence of any agreement, the parties are at liberty to apply in relation to the matter of costs within 21 days.

CATCHWORDS:

WORKERS' COMPENSATION – ENTITLEMENT TO COMPENSATION – appeal against decision – journey claim – substantial interruption – length of delay – reason for delay

LEGISLATION:

Workers' Compensation and Rehabilitation Act 2003 (Qld) s 32, s 35, s 36, 194

CASES:

Masters v Workers' Compensation Board of Queensland QIC 3/03/1995

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

Walker v Wilson (1991) 172 CLR 195

APPEARANCES:

Mr P Cullinane QC, instructed by Mr K Bocos of Mobbs & Marr Legal for the Appellant

Mr S McLeod QC, instructed by Ms C Godfrey of the Workers' Compensation Regulator for the Respondent

Reasons for Decision

Delivered ex tempore on 27 October 2021

 Background

  1. [1]
    This is an appeal against a decision of the Workers' Compensation Regulator on 28 February 2019 by Mrs Toni McCool (as administrator of the estate of Mr Shane Patrick McCool). Mr McCool died on 6 September 2017 following a single vehicle motor vehicle accident that occurred on 22 August 2017.
  1. [2]
    The injuries he suffered in the motor vehicle accident led to complications of his pre-existing chronic obstructive pulmonary disease ('COPD') and that ultimately resulted in him suffering respiratory failure.
  1. [3]
    It is not controversial that Mr McCool was travelling from the mine site where he worked at Middlemount to his home near Townsville at the time of the motor vehicle accident.
  1. [4]
    Mrs McCool has made a claim for compensation pursuant to s 35 of the Workers' Compensation and Rehabilitation Act 2003 (Qld) ('the Act') otherwise known as a 'journey' claim.
  1. [5]
    In essence, Mrs McCool contends that at the time of the motor vehicle accident, Mr McCool was on the journey from his employment to his place of abode.
  1. [6]
    The Regulator resists the claim on the basis that the facts suggest, for reasons unknown, that Mr McCool's journey has been the subject of a substantial interruption within the meaning of the exclusory provisions contained at s 36 of the Act and, as such, the claim is excluded.

Statutory framework

  1. [7]
    The relevant statutory regime for my consideration is found at s 32(2), s 35 and s 36 of the Act, which relevantly provide:
  1. Meaning of injury
  1. (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.
  2. (2)
    However, employment need not be a contributing factor to the injury if section 34(2) or 35(2) applies.

…

  1. 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. is on a journey between the worker's home and place of employment; or

…

  1. (2)
    for subsection (1), employment need not be a contributing factor for the injury.

…

  1. 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.
  2. (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. (b)
    during or after—

(i) a substantial delay or before the worker starts the journey; or

(ii) a substantial interruption of, or deviation from, the journey.

  1. (3)
    However, subsection (2)(b) does not apply if—
  1. (a)
    the reason for the delay, interruption or deviation is connected with the workers' employment; or
  1. (b)
    the delay, interruption or deviation arises because of circumstances beyond the worker's control.

…

  1. (5)
    For subsection (2)(b)(ii), in 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)
    for a deviation—the distance travelled for the journey in relation to the distance travelled for the deviation.

Agreed facts

  1. [8]
    There was substantial agreement between the parties on many of the facts relevant to this appeal. Those facts were the subject of an agreed statement of facts, which is now Exhibit 2 in these proceedings.
  1. [9]
    The agreed facts between the parties were as follows:
  • The Appellant is the administrator of the estate of the late Shane Patrick McCool (the worker) pursuant to a Grant of Letters of Administration issued by the Supreme Court of Queensland on 16 January 2019.
  • The worker was born on 10 April 1970 and died at the Mackay Base Hospital in Mackay on 6 September 2017.
  • The Appellant was married to the worker until the time of his death and had been married since 6 November 2004.
  • The worker was employed by Blunt Global Services Pty Ltd as a diesel fitter at Middlemount South Coal Mine (Foxleigh).
  • Middlemount South Coal Mine is an open cut coal mine, located at Dysart-Middleount Road, Middlemount which is situated near MacKenzie River in the State of Queensland.
  • The worker commenced employment with Blunt Global Services on or about 8 March 2017.
  • Blunt Global Services were working under a labour hire arrangement with Sharp's Heavy Equipment Repairs Pty Ltd at the mine site and the worker was required to report to them.
  • The worker's duties related to performing maintenance and repairs on plant and equipment at the mine site on a seven day even time roster.
  • The worker suffered from a pre-existing medical condition known as COPD caused by emphysema and chronic bronchitis.
  • The worker had a current coal board medical to work on site and a COPD management plan for his coal board medical requiring him to undergo regular review with a respiratory physician for treatment in relation to his condition.
  • The worker received treatment in relation to his medical condition by Dr Jerry Minei (Respiratory and Sleep Physician) on 30 May 2016, 13 June 2016, 12 September 2016 and 13 March 2017.
  • Dr Jerry Minei (Respiratory and Sleep Physician) certified the worker as fit to continue to work and drive without restriction on or about 13 March 2017 and further opined that his COPD condition was stable.
  • The worker was provided accommodation for his employment and stayed at the Foxleigh accommodation camp situated at Middlemount during his rostered shifts at the mine site.
  • The worker resided at 39 Tregaskis Street, Vincent in the State of Queensland and the nature of his employment required him to drive between his residence and the accommodation camp each rotation for work.
  • A direct route to Townsville from Middlemount is along Bowen Developmental Road via Glenden to Bowen.
  • The road to Glenden is accessed by travelling from Middlemount to Moranbah and then proceeding on Red Hill Road to Ellensfield Road until turning right at a t-intersection on Ellensfield Road to Suttor Developmental Road.
  • The distance between Middlemount and Moranbah is approximately 150 kilometers.
  • The distance between Moranbah and the intersection to Ellensfield Road and Suttor Developmental Road is approximately 70 kilometers north of Moranbah.
  • During the period relevant to this proceeding, the worker commenced his rostered shift and was required to work until 6:00 pm each day from 16 August 2017 to 22 August 2017.
  • The worker did not work his rostered shifts on 20, 21 or 22 August 2017 after reporting feeling unwell, lethargic and presenting with a cough and difficulty breathing to Mr Mark Bowman, a site paramedic at the mine site on 20 August 2017.
  • Mr Bowman transported the worker to Middlemount Medical Centre for a health check on 20 August 2017.
  • After the attendance at Middlemount Medical Centre, the worker requested that he be transported back to his accommodation to rest.
  • Mr Bowman cautioned the worker about resting without being able to be monitored and the worker agreed to communicate by telephone or text message with Mr Bowman or his supervisor.
  • Mr Bowman completed a Patient Care Report form on 20 August 2017.
  • Mr Bowman rang and spoke to the worker on the telephone on 21 August 2017 and the worker advised him words to the effect that he was considering contacting his wife to travel to Middlemount to take him home.
  • On 22 August 2017, Mr Bowman and the worker had a further conversation on the telephone about his travel arrangements whereby the worker advised words to the effect that he intended to travel to Moranbah to stay with someone and then drive to Townsville the next day. Mr Bowman advised the worker during the telephone conversation to drive cautiously and rest if fatigued.
  • On 22 August 2017, the worker departed the accommodation camp and commenced his journey to Townsville via Moranbah after collecting a trailer for personal use at a carpark near the accommodation camp.
  • The mine site swipe card history for the worker shows that the last time the worker opened the door to his camp accommodation room was at 1:37:52pm on 22 August 2017 and the next time his room was accessed was on 23 August 2017 at 8:52:58am by the cleaner.
  • The worker was involved in a single vehicle motor accident at approximately 10:30 pm on 22 August 2017.
  • The motor accident occurred at the t-intersection to Ellensfield Road and Suttor Developmental Road near Moranbah after the worker collided with a sign and concrete footing on the road before the vehicle came to a rest on a pastoral field.
  • The vehicle and trailer came to a rest approximately 43 meters from the road on the field with both airbags deployed.
  • The worker sustained bruising to his chest and stomach as a result of the airbags deploying and/or wearing his seatbelt.
  • On 22 August 2017 at approximately 11:54 pm, Constable Lauren Collins and her partner from Queensland Police Service attended the motor vehicle accident. Queensland Ambulance Service were also present at the scene of the accident.
  • Ms Collins observed that:
    • both airbags had deployed in the accident;
    • the vehicle's front windscreen had been smashed on the passenger side;
    • personal belongings were strewn in the cabin of the vehicle;
    • there were no skid or brake marks on the road or field;
    • the trailer frame remained attached to the vehicle, however the trailer top and left rear wheel had dislodged next to the frame; and
    • the worker had bruising to the left side of his chest.
  • A roadside breath test was conducted on the worker with a result of 0.000 blood alcohol content.
  • Ms Collins and her partner questioned the worker about the accident.
  • Ms Collins had recorded the events relating to the motor vehicle accident in her police notebook and subsequently generated an electronic report. Ms Collins also recorded her attendance at the scene of the accident and interview with the worker on a body camera.
  • The worker was subsequently transported by Queensland Ambulance Service to Moranbah Hospital for treatment.
  • The worker was transferred from Moranbah Hospital to Mackay Base Hospital for further treatment on 23 August 2017.
  • On 23 August 2017, a diagnostic laparotomy was performed by Dr Marius Jordaan at the Mackay Base Hospital to identify any intra-abdominal injuries.
  • On 24 August 2017, Mr Bowman sent an email in relation to the worker to Mr Rhys Davies who was the Health & Emergency Management Supervisor at the mine.
  • On 6 September 2017, the worker passed away and the cause of death as stated on the death certificate is: 1(a) Respiratory failure (b) Pneumonia 2.  Chronic obstructive pulmonary disease.
  1. [10]
    Importantly, key facts that can be distilled from the agreed facts are:
  • The total distance travelled between the place of employment and the place where the motor vehicle accident occurred was approximately 222 kilometres;
  • The motor vehicle accident occurred at approximately 10.30pm on the evening of 22 August 2017;
  • For the two days immediately preceding the motor vehicle accident, Mr McCool was very ill with a cough, breathing difficulties and lethargy. He continued to be ill with these symptoms on 22 August 2017;
  • Prior to his departure from Middlemount, Mr McCool was being assisted with managing his illness by a site paramedic, including being transported to a health check on 20 August 2017. Mr McCool was so sick that he was unable to work for the three days including the day of his departure; and
  • On 22 August 2017 when Mr McCool indicated he was intending to depart the site and return home, the site paramedic advised him to drive cautiously and rest if fatigued.

Contested facts

  1. [11]
    Beyond these agreed facts, there are a number of contested facts relevant to this claim.
  1. [12]
    Evidence in respect of those contested facts was led in the form of witness testimony from Mrs Toni McCool, who gave evidence about communications she had had with Mr McCool on the afternoon of 22 August 2017, and Mr Rod Wilson, who was, at the relevant time, a workplace health and safety officer with Mr McCool's employer. Mr Wilson gave evidence about a conversation he had with Mrs McCool on the afternoon of 22 August 2017.
  1. [13]
    Further, evidence was tendered (by consent) in the form of documents, including:
  • Telephone records of Mrs McCool covering the relevant period.[1]
  • SMS messages exchanged between Mrs McCool and Mr McCool on 22 August 2017.[2]
  • An agreed bundle of documents[3] that included:

–  the accommodation log-in records for Mr McCool's accommodation on the work site at Middlemount.

–  police notes taken by police officers at the scene of the motor vehicle accident in the early hours of the morning of 23 August 2017.

–  body cam footage from one of the police officers who attended the scene of the motor vehicle accident.

  1. [14]
    These further pieces of evidence were relied on or referred to by both parties to address a number of critical controversies relevant to determining the timing of Mr McCool's journey and his whereabouts throughout that journey.
  1. [15]
    The central controversy in these proceedings was around the approximate time that Mr McCool departed the site at Middlemount to commence his journey home.
  1. [16]
    A secondary controversy (related to the central issue) was the whereabouts of Mr McCool at or about 3.30pm on the afternoon of 22 August 2017 when he spoke to Mrs McCool on the phone.
  1. [17]
    On the Regulator's case, Mr McCool departed the site at or about 2pm on 22 August 2017. The Regulator further says that Mr McCool had reached Moranbah by 3.30pm that afternoon when he spoke to Mrs McCool on the phone. On these alleged facts, there is a gap of approximately seven hours between the phone call from Moranbah at 3.30pm and the motor vehicle accident a mere 73 kilometres away. In these circumstances, the Regulator contends that the size of the time gap is consistent with a substantial delay.
  1. [18]
    The Appellant, on the other hand, contends that Mr McCool departed the site at approximately 7pm and covered a significant part of the 222 kilometres prior to 8.30pm, at which point he rested for approximately an hour. They say then that an hour into the resumed journey, Mr McCool was involved in the motor vehicle accident.

Consideration - timing

  1. [19]
    In order to give proper consideration to the provisions of s 36 of the Act, the controversy around the departure time must be resolved. For reasons of efficiency, I will deal with the secondary controversy first, namely the whereabouts of Mr McCool at 3.30pm on the afternoon of 22 August 2017.

Whereabouts at 3:30pm on 22 August 2017

  1. [20]
    Mrs McCool gave evidence that she had spoken to Mr McCool 'after 2pm' on the day in question. She was unable to be any clearer in her evidence-in-chief as to the time but later under cross examination she agreed that it was 3.30pm.[4]
  1. [21]
    Mr Rod Wilson gave evidence that on 22 August 2017 he was asked by his CEO to check on Mr McCool. There were concerns held for Mr McCool undertaking the trip while he was unwell. Mr Wilson gave evidence that he inadvertently called Mrs McCool and explained to her the purpose of his phone call and the fact that he had been looking to speak to Mr McCool. He said that Mrs McCool then told him that she would call Mr McCool and then call him back to explain what the status of Mr McCool was.
  1. [22]
    Mr Wilson gave evidence that Mrs McCool called back later that afternoon and, amongst other things, reported to him that Mr McCool was in Moranbah. Mrs McCool denies that she told Mr Wilson that Mr McCool was in Moranbah.
  1. [23]
    In her evidence, Mrs McCool states that following the call from Mr Wilson, she called Mr McCool to ask him how he was feeling and to check on his wellbeing. She says that she asked him to provide an update to her each hour on his journey home. She says he did not say where he was at the time that they were speaking or give any other details about his journey to her, and she was unable to say with any certainty where he was. She attempted to speculate as to his whereabouts, but none of that gives rise to a finding of fact.
  1. [24]
    There is a stark contrast in the evidence of Mrs McCool and Mr Wilson on this point. I note that Mrs McCool was attempting to recall the contents of a conversation that took place over four years ago and during a time that, no doubt, involved a degree of emotional upheaval for her. While I do not consider that Mrs McCool is being untruthful in her evidence, I prefer the evidence of Mr Wilson on this point.
  1. [25]
    I am satisfied that Mrs McCool told Mr Wilson that Mr McCool was at Moranbah at approximately 3.30pm on the afternoon of 22 August 2017. I am satisfied of this primarily because I consider that Mr Wilson is more likely to have recalled this detail of the whereabouts of Mr McCool at that time. I consider it more likely that he would recall it because that was his purpose in calling Mrs McCool, i.e. to check on the welfare of Mr McCool. The information about Mr McCool's whereabouts would have been an important fact and one that he is likely to have remembered.
  1. [26]
    Further I consider Mr Wilson, as an independent witness, would be very unlikely to be mistaken about such a specific detail in his recollection.
  1. [27]
    For completeness, I note that there are three SMS messages contained in Exhibit 4 that cover the period between 4.30pm and approximately 8pm on 22 August 2017. While not entirely informative, their contents are consistent with Mr McCool having started his journey and contain requests for updates that coincide with Mrs McCool's evidence of the request for updates of the journey that she states she made in the telephone conversation at 3:30pm. 
  1. [28]
    In the circumstances, given my conclusion as to the nature of the conversation between Mrs McCool and Mr Wilson, and the information conveyed by Mrs McCool to Mr Wilson about Mr McCool's whereabouts, I am satisfied that in all probability, Mr McCool was at Moranbah at 3.30pm on the afternoon of 22 August 2017. From this conclusion the central controversy as to the departure time from the Middlemount site can be resolved.

Departure from Middlemount

  1. [29]
    There is no direct evidence as to the precise time of Mr McCool's departure from his place of employment. Mr McCool had accommodation on the site and the door to gain entry to his quarters was electronically monitored. A document was tendered by consent and is contained in Exhibit 1 that sets out the activity recorded on the lock to Mr McCool's accommodation during his last days at work, including on 22 August 2017.
  1. [30]
    No witness was called by either party to interpret the data contained in this document.
  1. [31]
    Having regard to the document, the data appears to record when Mr McCool entered and exited his room. An entry to the room in the data appears to be recorded by the words "door opened (key)". An exit from the room appears to be indicated in the data by the words "door opened from inside".
  1. [32]
    What is curious about the data contained in this document is that there are not equal numbers of corresponding entries. There appears to be far more entries recording that the door was opened from inside than entries indicating the door was opened with a key.
  1. [33]
    In the absence of any other explanation, the data suggests to me that it was possible to exit the room without locking the door. This can be the only explanation for multiple consecutive recordings of the door opening from the inside. If that is correct, then it would seem that there would be no need or reason for Mr McCool to leave the door ajar as was suggested by learned Counsel for the appellant.
  1. [34]
    In the circumstances of the evidence available (and the absence of anything to contradict it) I conclude that Mr McCool left his accommodation for the last time at 1.37pm as recorded by the data in the electronic records.
  1. [35]
    It is an agreed fact that Mr McCool then collected a trailer near the carpark on the site at Middlemount before he left. Allowing for that to take a further short period I am satisfied that in all probability, Mr McCool left his place of employment and commenced his journey home sometime around or just after 2pm on 22 August 2017.
  1. [36]
    For completeness, I will deal with the contention of Mrs McCool that Mr McCool left the site at 7pm. I reject that theory for these reasons: firstly, the SMS messages exchanged between Mr and Mrs McCool from approximately 4.30pm until approximately 8pm on 22 August 2017 are all entirely consistent with Mr McCool having commenced his journey well before 7pm.
  1. [37]
    For example, at 4.35pm a message is sent by Mrs McCool to Mr McCool and it reads:

Update. It's been over an hour. Love you.

  1. [38]
    In the context of Mrs McCool's evidence-in-chief (where she indicated that when she spoke to Mr McCool at 3.30pm, she asked him to provide her with hourly updates) this text message appears to be consistent with that arrangement that had been made by them an hour earlier. Mr McCool responds at 4.37pm:

I'm ok, darl. Dirt road.

  1. [39]
    In my view, this exchange in all probability suggests that Mr McCool was already enroute to his place of abode.
  1. [40]
    The next message that indicates that Mr McCool had commenced his journey well before 7pm is when he responds to a message from Mrs McCool at approximately 5.59pm where Mrs McCool asks:

It's been 1.5 hours. Are you ok? Love you. Better hear something soon.

  1. [41]
    Mr McCool responds at 6.07pm:

Yeah, all good. Calm down. Love you heaps.

  1. [42]
    The third message that I consider to be consistent with Mr McCool having well and truly commenced his journey before 7pm is a message from Mrs McCool at 7.50pm where she says to him:

Been 2 hours, darl. Where are you? Have you stopped for a rest? Love you.

  1. [43]
    At 7.57pm, Mr McCool responds:

Yes, need a nap. Love you.

  1. [44]
    I consider these text messages to be compelling evidence to suggest that Mr McCool was well and truly on his journey before 7pm.
  1. [45]
    Secondly, in support of her contention, Mrs McCool relies on the police body camera vision and audio. The body camera vison and audio were viewed a number of times during and after the proceedings. There is a critical (attempted) exchange between a male police officer and Mr McCool depicted in the vision from which Counsel for Mrs McCool suggests I can draw a conclusion that Mr McCool told police he left the mine site at 7pm.
  1. [46]
    Having viewed the footage and listened to the audio multiple times I can confidently conclude that they do not depict Mr McCool saying or even gesturing that he departed the site at 7pm. At its highest, the body camera images and audio capture what can only be described as careless investigation work by the attending officer.
  1. [47]
    The vision and audio in question depict an officer simply suggesting 'facts' to Mr McCool whilst he is laying prone in the back of an ambulance. One of the facts that the officer suggests to Mr McCool is that he departed the mine site at 7pm. There is no audible response or any other indication in the affirmative from Mr McCool to that suggestion.
  1. [48]
    The fact that the officer has then recorded this 'fact' that he gathered in his QPS notebook does not make it in anyway reliable. Indeed, it is a cautionary example as to the dangers of relying too blindly on the notes taken by members of the QPS in this way.
  1. [49]
    Had the officer in question been called to give evidence, he might have been able to inform us more reliably with an explanation as to why he recorded the data in his notebook in that fashion. But he was not called and as such, from what is able to be gleaned from the body camera footage, I consider that there is no evidence to reliably support a conclusion that Mr McCool indicated that he left the mine site at 7pm.
  1. [50]
    Finally, I consider that given that Mr McCool was extremely ill and had expressed a desire to return home, it is highly unlikely that he would leave his accommodation at 1.37pm, not return to his accommodation, and then wait at the mine site for approximately five hours before departing, all the while having no contact with or being seen by anyone.
  1. [51]
    In the circumstances of the conclusions set out above, I can now identify the relevant parameters for my consideration, namely:
  • Mr McCool left Middlemount to commence his journey home at or about 2pm on 22 August 2017;
  • Mr McCool travelled 222 kilometres over a period of eight and a-half hours; and
  • Mr McCool was involved in an event within the meaning of s 35 of the Act, namely a single vehicle motor vehicle accident in which he sustained injuries leading to his death on 2 September 2017.

Consideration of exclusionary provisions

  1. [52]
    In summary, the exclusory provisions of 36(5) of the Act require me to consider the reason for the interruption and also consider a comparison between the estimated time for the journey taken as against the estimated time for the interruption. I will start with the second consideration first.

Estimated time of the journey and interruption

  1. [53]
    A journey of 220 kilometres on open highway (allowing for reduced speeds while passing through towns etc), while travelling at approximately 100 kilometres per hour on average would, in my experience and estimation, take approximately two and a-half hours.
  1. [54]
    The journey from departure until the motor vehicle accident took Mr McCool eight and a half hours. Even allowing for approximately one hour for rest that was taken at approximately 8.30pm, it still makes the journey 7.5 hours. From a standpoint of pure arithmetic, there are approximately five to six unexplained hours in Mr McCool's journey.
  1. [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.
  1. [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.
  1. [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. 
  1. [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.
  1. [59]
    In Sucrogen Australia Pty Ltd v Simon Blackwood (Workers' Compensation Regulator),[5] ('Sucrogen') there is an extract from a High Court decision of Walker v Wilson.[6] The extract in relation to the comments of his Honour Justice Brennan is apposite:

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)

  1. [60]
    At paragraph 17 of Sucrogen, there is a further extract from the joint judgment of their Honours Justices Dean, Dawson, Toohey and McHugh where it said:

What constitutes a substantial interruption must be determined by reference to all of the relevant circumstances.

  1. [61]
    Section 36(5) of the Act requires me to consider (in addition to estimates of time of the journey and the interruption) the reason for the interruption and, given Mr McCool's poor health and the reminder of the paramedic of the need to manage fatigue on his journey, I would not be prepared to conclude that interruptions attributable to Mr McCool managing his fatigue on such a journey in such circumstances should count towards the substantiality of the interruption for the purposes of excluding his claim.

Reason for the interruption

  1. [62]
    While the mere reference to the excess time taken on a journey does not, of itself, establish substantial interruption, I am confronted with some difficulty in considering the reason for the delay. No reason was offered because the case argued by Mrs McCool was singular and simple, namely: that Mr McCool left the workplace at 7pm. No alternative argument was advanced. Given that I have rejected that argument, I am left to consider the reason for the delay in something of a vacuum.
  1. [63]
    There is a dearth of evidence to explain Mr McCool's movements on 22 August 2017. This undermines the arguments of both parties. Because of this lack of evidence, no theories have been able to be presented to explain or even suggest an explanation for the additional five to six hour period in the journey undertaken by Mr McCool.
  1. [64]
    Significantly though, in contrast to other cases involving deviation and delay, there is no submission that Mr McCool deviated from the route between his workplace and his home. Further, there is no suggestion or evidence that Mr McCool engaged in any activity unrelated to his employment or otherwise contributing to the delay.[7]
  1. [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.
  1. [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.
  1. [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.
  1. [68]
    I am particularly conscious that the legislation in respect of claims of this nature is intended to confer a benefit and it ought to be applied in that way.[8] In those circumstances, and on the facts before me, I am satisfied the claim is one for acceptance and I consider that the appeal ought to be allowed.

Order

  1. [69]
    As a consequence of this conclusion, I make the following orders:
  1. The appeal is allowed; and
  1. In the absence of agreement, the parties are at liberty to apply on the question of costs within 21 days.

Footnotes

[1] Exhibit 3.

[2] Exhibit 4.

[3] Exhibit 1.

[4] Phone records tendered by the Regulator that are Exhibit 3 in these proceedings reveal that a phone call was made from Mrs McCool to Mr McCool’s mobile number at precisely 3.30pm on 22 August 2017.

[5] [2015] QIRC 074, [16]-[17].

[6] (1991) 172 CLR 195; (1991) 65 ALJR 273, [276].

[7] Compare with Masters v Workers' Compensation Board of Queensland QIC 3/03/1995.

[8] Workers' Compensation and Rehabilitation Act 2003 (Qld) s 194(3).

Close

Editorial Notes

  • Published Case Name:

    McCool (as administrator of the estate of Shane Patrick McCool) v Workers' Compensation Regulator

  • Shortened Case Name:

    McCool (as administrator of the estate of Shane Patrick McCool) v Workers' Compensation Regulator

  • MNC:

    [2021] QIRC 374

  • Court:

    QIRC

  • Judge(s):

    Member Dwyer IC

  • Date:

    27 Oct 2021

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
Sucrogen Australia Pty Ltd v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 74
2 citations
Jump To
Cite 1 - [2015] QIRC 74
Cite 2 - [2015] QIRC 74
Walker v Wilson (1991) 172 CLR 195
2 citations
Jump To
Cite 1 - (1991) 172 CLR 195
Cite 2 - (1991) 172 CLR 195
Walker v Wilson (1991) 65 ALJR 273
1 citation
Jump To
Cite 1 - (1991) 65 ALJR 273

Cases Citing

Case NameFull CitationFrequency
Workers Compensation Regulator v McCool (as administrator of the estate of Shane Patrick McCool) [2022] ICQ 48 citations
1

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