Duckworth v Simon Blackwood (Workers' Compensation Regulator) [2016] ICQ 3

INDUSTRIAL COURT OF QUEENSLAND CITATION: Duckworth v Simon Blackwood (Workers’ Compensation Regulator) [2016] ICQ 003 PARTIES: RODNEY JAMES DUCKWORTH (appellant) v SIMON BLACKWOOD (WORKERS’ COMPENSATION REGULATOR) (respondent) FILE NO/S: C/2015/25 PROCEEDING: Appeal DELIVERED ON: 19 February 2016 HEARING DATE: 24 July 2015 MEMBER: Martin J, President ORDER/S: Appeal dismissed. CATCHWORDS: WORKERS’ COMPENSATION – PROCEEDINGS TO OBTAIN COMPENSATION – DETERMINATION OF CLAIMS – APPEALS, JUDICIAL REVIEW AND STATED CASES – NATURE AND SCOPE OF APPEAL AND REVIEW – where the appellant suffered serious injuries as a result of engaging in a fight at his workplace – where the appellant was denied compensation by the Regulator – where the appellant appeals the decision of the Commissioner upholding the Regulator’s decision – whether the Commissioner erred in finding that the appellant engaged in serious and wilful misconduct by failing to adequately take into account the events leading up to the fight – whether the Commissioner erred in finding that the appellant’s employment was not a significant contributing factor to his injuries – whether the Commissioner erred in finding that the appellant was engaged in wilful misconduct Workers’ Compensation and Rehabilitation Act 2003, s 32(1), s 130. CASES: Australia Meat Holdings Pty Limited v Q-COMP (2007) 186 QGIG 527 Boral Resources (Queensland) Pty Ltd v Pyke [1992] 2 Qd R 25 at 43 Duckworth v Simon Blackwood (Workers’ Compensation Regulator) [2015] QIRC 112 R.E.C. Group Pty Ltd v Q-COMP (WC/2009/20) - Decision <http://www.qirc.qld.gov.au>; [2009] QIRComm 400 -- 1 of 6 -- 2 APPEARANCES: S Anderson for the appellant, instructed by Shine Lawyers R Clutterbuck for the respondent, directly instructed by the Regulator [1] On 7 May 2014, the appellant suffered serious head injuries as a result of engaging in a fight with another employee at his workplace. The injuries he suffered caused him to be placed in intensive care for about a week and he has been permanently affected by them. He sought, but was denied, compensation for his injuries and he appeals against the Commissioner’s decision upholding the Regulator. [2] The decision of the Commissioner was concerned with whether or not the appellant’s injuries had been caused by his serious and wilful misconduct. [3] Section 130 of the Workers’ Compensation and Rehabilitation Act 2003 (the Act) provides: “(1) Compensation is payable for an injury sustained by a worker that is caused by the worker’s serious and wilful misconduct only if - (a) the injury results in death; or (b) the insurer considers that the injury could result in a DPI of 50% or more. … (4) In this section - serious and wilful misconduct of a worker does not include conduct engaged in at the express or implied direction of the worker’s employer.” [4] The Commissioner set out in her reasons1 all that need be said for the purposes of this case with respect to the meaning of the term “serious and wilful misconduct,” and I can do no better than repeat it here: “[4] The phrase ‘serious and wilful misconduct’ was considered by Hall P in Australia Meat Holdings Pty Limited v Q-COMP: ‘This Court is concerned only with the issue whether the ‘wilful misconduct’ upon which Mr Richardson chose to engage is properly characterised as ‘serious misconduct’. In embarking upon that task, the Court is assisted by the circumstance that the parties are ad idem that in the expression ‘serious and wilful misconduct’ the word ‘and’ is used in a conjunctive and not disjunctive sense. It is also conceded by Counsel for the Appellant that the language precludes any 1 Duckworth v Simon Blackwood (Workers’ Compensation Regulator) [2015] QIRC 112. -- 2 of 6 -- 3 argument that ‘wilful misconduct’ is always ‘serious misconduct’. Counsel maintain, in my view correctly, that the circumstance that misconduct is ‘wilful’ may be taken into account in weighing its ‘seriousness’. The expression ‘serious and wilful misconduct’ and the rival expression ‘serious or wilful misconduct’ have been much considered in employment-related litigation and in particular in connection with disentitlement to workers’ compensation benefits for over a hundred years, see e.g. Johnson v Marshall, Sons and Co Ltd [1906] AC 409. Each of the words ‘serious’, ‘wilful’ and ‘misconduct’ is capable of bearing different shades of meaning, Australasian Meat Industry Employees Union v Australian Meat Holdings Pty Ltd [1999] FCA 96 at paragraph 87 per Dowsett J. In the present context, notwithstanding that the adjective ‘serious’ is used to describe the misconduct and is not used with reference to consequences of the misconduct, it seems to be settled that the seriousness of the misconduct is to be evaluated having regard to whether the conduct would be attended by the risk of non-trivial injury, see Johnson v Marshall, Sons and Co Ltd, ibid, at 416. I do not, however, accept the proposition contended for by the Industrial Magistrate in reliance upon the decision of Green CJ in Hills v Brambles Holdings Ltd (1987) 4 ANZ Insurance Cases 60-785, that for conduct to amount to serious and wilful misconduct, it must ‘be such as to give rise to immediate risk of serious injury’. I respectfully adopt the view of Finn J in Comcare v Calipari [2001] FCA 1534 at paragraph 4, where His Honour said of the quoted passage: ‘This usage is unexceptional if it is understood as signifying no more than the converse of trivial injury. If t was intended to signify more than that and apostolate a positive requirement, it can find no justification in the terms of the statute itself, nor in the general run of authoritive (sic) expositions of the formula.’ Neither do I accept that a claimant worker is disentitled to workers’ compensation benefits only where the evidence shows that the worker had ‘knowledge of the risk of injury and, in the light of that knowledge, proceeded without regard to the risk’, see Sawle v Macadamia Processing Co Pty Ltd [1999] NSWCC 26; (1999) 18 NSWCCR 109 at paragraph 24 per O’Meally J. The requirement that the misconduct must be ‘wilful’ adequately protects injured workers who might otherwise lose everything because of a momentary lapse into carelessness. It is a statutory gloss to go beyond weighing wilful risk taking in the balance and to confine s. 130 to such cases. For the same reason, I also reject the proposition of Green CJ in Hills v Brambles Holding Ltd (1987) 4 ANZ Insurances Cases 60-785, that the defence is available only -- 3 of 6 -- 4 where the misconduct is ‘accompanied by an appreciation of the risk which is involved in it’. The preferable approach is that of Derrington J in Boral Resources (QLD) Pty Ltd v Pyke [1992] QdR 25 at 43, that the ‘necessary knowledge and appreciation need not descend to particularity’ and that an ‘appreciation of possible danger or of factors which might enlarge it’ may be sufficient to justify characterisation of the ‘wilful misconduct’ as ‘serious’. Beyond those observations, it seems to me that the relatively simple language of s. 130 should not be overlayed with gloss and the question whether ‘misconduct’ is to be characterised as ‘serious’ should be dealt with as a jury question, compare Boral Resources (QLD) Pty Ltd v Pyke [1992] 2QdR 25 at 33 per Thomas J.’2 [5] In the decision R.E.C. Group Pty Ltd v Q-COMP,3 Asbury C drew on the judgment of Derrington J in the case of Boral Resources (Queensland) Pty Ltd v Pyke referred to by President Hall in Australia Meat Holdings. She said that although Derrington J was considering a case concerning an insurance contract, he provided some useful guidance on the construction of the essential phrase ‘serious or wilful misconduct’. He observed that because it is a substantial detriment for an employee to be deprived of the relief provided to employees generally by the section, appropriate caution must be exercised in its construction. [6] In considering the term ‘serious misconduct’, His Honour Derrington J held that it must be something significantly worse than negligence and ‘must imply the need for such a degree of gravity as to make it fair and just that the employee should be deprived of the benefit of the relief.’ Further, it was held that: ‘In order to be serious, the misconduct, although it may be so, need not be wilful in the sense of demanding recognition of its wrongfulness or deliberately reckless disregard of the risks ... .’ and ‘… although the standard is objective, this does not mean that factors personal to the (employee) should be ignored.’ [7] In relation to the term ‘wilful misconduct’ Derrington J held: ‘First it may amount to intentionally causing the loss. Secondly it may alternatively mean an intentional or deliberately reckless course of misconduct with knowledge that it is dangerous and wrong, that is an unreasonable perseverance in it with a recognition of its wrongfulness and a reckless disregard of any risks...’.”4 2 Australia Meat Holdings Pty Limited v Q-COMP (2007) 186 QGIG 527; [2007] QIC 37. 3 R.E.C. Group Pty Ltd v Q-COMP (WC/2009/20) - Decision <http://www.qirc.qld.gov.au>; [2009] QIRComm 400. 4 Boral Resources (Queensland) Pty Ltd v Pyke [1992] 2 Qd R 25 at 43. -- 4 of 6 -- 5 Grounds of appeal [5] The appellant identifies three errors. They are: (a) the Commissioner erred in her decision by finding that the appellant engaged in serious and wilful misconduct by failing to adequately take into account the events leading up to the incident on 7 May 2014; (b) the Commissioner erred in her decision by finding that the appellant’s employment was not a significant contributing factor to his injury in that she failed to adequately take into account the events leading up to the incident on 7 May 2014; and (c) the Commissioner erred in her decision in finding that the appellant engaged in wilful misconduct. Engaging in serious and wilful misconduct – were the events leading up to the incident taken into account? [6] The Commissioner commenced her consideration of the facts in this way: “[8] The physical altercation in which Mr Duckworth was injured occurred on 7 May 2014. It has to be considered in the context of the treatment of Mr Duckworth by another employee, Martin Cameron…” (emphasis added) [7] The Commissioner then went on to deal, in appropriate detail, with the unfortunate relationship between the appellant and Mr Cameron. In doing so, she described the events which were relevant to the relationship between the two men and demonstrated how that conduct had led to the assault on 7 May 2014. The Commissioner clearly took into account what had preceded the events of that day when, at [29], she said: “The case for Mr Duckworth, which was presented carefully and skilfully, is that his conduct on 7 May 2014 was neither serious nor wilful misconduct. He did not intend to fight Mr Cameron but was seeking a peaceful resolution of a problem that had been created by Mr Cameron and left unresolved by Mr Boardman.” (emphasis added) [8] The reference to the “problem that had been created” is a reference to all that had preceded the events of 7 May. The Commissioner did take into account those events. Did the appellant engage in wilful misconduct? [9] The Commissioner answered that question in this way: “[46] … I am also satisfied that Mr Duckworth embarked upon an intentional or deliberately reckless course of misconduct with knowledge that it was dangerous and wrong. He knew it was dangerous or that the danger might be enlarged because of -- 5 of 6 -- 6 Mr Cameron’s alleged background and it was wrong because he knew that fighting in the workplace would lead to summary dismissal. For these reasons, I find that Mr Duckworth engaged in wilful misconduct.” [10] There was evidence to support each of the findings made by the Commissioner in that paragraph. No error has been demonstrated in the reasoning employed by the Commissioner in coming to those conclusions. Was the appellant’s employment a significant contributing factor? [11] Although this was considered by the Commissioner in her reasons, she did so only because it had been argued before her. As the Commissioner correctly observed: “it is strictly unnecessary to consider the question of whether the injury falls within the meaning of s 32(1) of the Act”. [12] The Commissioner made a series of detailed findings of fact, some of which were based upon her observation of the witnesses and the resolution of competing accounts. The Commissioner correctly applied the law and made findings which were consistent with and supported by the evidence. No error has been demonstrated. [13] The appeal is dismissed. -- 6 of 6 --