Coles Group Limited v Q-COMP [2011] ICQ 18

CITATION: Coles Group Limited AND Q-COMP (C/2011/10) - Decision <http://www.qirc.qld.gov.au> .INDUSTRIAL COURT OF QUEENSLAND Workers' Compensation and Rehabilitation Act 2003 - s. 561(1) - appeal against decision of industrial magistrate Coles Group Limited AND Q-COMP (C/2011/10) PRESIDENT HALL 27 June 2011 DECISION [1] On 3 August 2009, Mr Peter Dalla Costa made Application for Compensation under the Workers' Compensation and Rehabilitation Act 2003 (the Act). The Self-Insurer, viz., Coles Group Limited, rejected the claim. Mr Dalla Costa sought a Statutory Review. On 18 May 2010, Q-COMP set aside the Self-Insurer's decision and substituted another decision accepting the claim. The Self-Insurer appealed to the Industrial Magistrate at Brisbane. By a decision delivered on 15 February 2011, the appeal was dismissed. The Self-Insurer now Appeals to this Court. [2] Mr Dalla Costa, a worker for the purposes of the Act, was injured whilst driving from his home to his place of work. It is the effect of ss. 32(1) and 35(1)(a) of the Act that his injury was compensable, provided that s. 36(2)(a)(ii) of the Act does not operate. Section 36(2)(a)(ii) provides: "(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 - (a) while the worker is in control of a vehicle and contravenes - … (ii) the Criminal Code, section 328A or a corresponding law, if the contravention is the major significant factor causing the event;". Section 328A of the Criminal Code (see Criminal Code Act 1899) relevantly provides: "(1) A person who operates, or in any way interferes with the operation of, a vehicle dangerously in any place commits a misdemeanour.". [3] The Industrial Magistrate (correctly) summarised the argument at first instance as follows: "14 The argument of this appeal has two limbs: 14.1 The contention by Coles that there doesn't have to be a conviction of the offence of Dangerous Operation of a Motor Vehicle for there to be a contravention of Section 328A of the Criminal Code for the purposes of enlivening Section 36(2)(a)(ii) of the Act (which is opposed by the Respondent); and (if Coles' contention is correct) 14.2 The contention of Coles that Mr Dalla-Costa contravened Section 328A of the Criminal Code by his manner of driving (again which is argued against by the Respondent).". The first limb of the argument was decided favourably to the Self-Insurer. Q-COMP does not now seek to re-agitate the matter. The Appeal to this Court is all about the second limb of the argument. [4] It is not contentious that the Self-Insurer carried the onus of proof. Neither is it contentious that proof need only be on the civil standard, i.e. the balance of probabilities see Helton v Allen1 and Rejfek v McElroy2. Neither, is it contentious that because of the gravity of the fact to be proved, the degree of satisfaction required by the civil standard is higher than when more mundane facts are in issue, see Briginshaw v Briginshaw3 and note the weight attributed to the presumption of innocence at 363, per Dixon J. [5] The Industrial Magistrate summarised the Self-Insurer's submissions on the matter of dangerous driving as follows: "22.1 Speeding (in excess of the speed limit of 50 kilometres per hour); 1 Helton v Allen (1940) 63 CLR 691 2 Rejfek v McElroy (1965) 112 CLR 517 3 Briginshaw v Briginshaw (1938) 60 CLR 336 -- 1 of 3 -- 2 22.2 Allowing the vehicle to cross the road; 22.3 Allowing the vehicle to mount the footpath and strike a barrier; 22.4 Allowing the vehicle to move to the left, back across and strike a house.". [6] The Industrial Magistrate put aside the issue at 22.2 on the ground that, after the barrier struck Mr Dalla Costa's head, he ceased to have control of the vehicle. The Self-Insurer accepts that finding. [7] As to the allegation of speeding, there was conflicting evidence. A Sergeant Price, conducted a speed analysis of the incident and concluded that Mr Dalla Costa was travelling at 96km/h (+/- 5km/h) at the time of the incident. Dr Frank Grigg (a Chartered Professional Engineer) and Mr Scott Boyd (a Member of the Institute of Engineers), disagreed with that estimate. The Industrial Magistrate, who had the advantage of hearing and seeing the witnesses, gave entirely adequate reasons for preferring the evidence of Dr Grigg and Mr Boyd, recording: "34 … Scott Boyd, a member of the Institute of Engineers Australia, agreed with Dr Grigg's conclusion. As Mr Boyd said in his report: 34.1 The Police Report ignored the kinetic energy dissipated during the collision with the house (although if this had not been ignored, the speed estimate would have been greater); 34.2 It was not possible to say with certainty that all the marks observed between the culvert and the collision with the house were as a result of breaking [sic] (some may have been yaw marks and Sgt Price himself agreed that after the incident at the culvert, there could have been some acceleration); 34.3 An incorrect assumption was made that the vehicle used all of the friction available to it (in other words there may have been interruptions to the maximum braking effort). 35 I do not accept the evidence of Sgt Price as to the speed of the vehicle as it approached the culvert for the above reasons. 36 Both engineers preferred to calculate the speed of the vehicle by using a formula to calculate the maximum speed from a turning radius. Using this method Dr Grigg calculated a maximum speed of 74km/h. Mr Boyd likewise calculated a maximum speed of 73km/h. Dr Grigg said there was a high probability that the vehicle was travelling at least at 60km/h when it moved onto the incorrect side of the road. Mr Boyd said in his reports that if the vehicle went through the turn on grass then using the co-efficient of friction suggested by Sgt Price then the vehicle could only be travelling at a maximum speed of 42km/h. 37 It is difficult from all this evidence to find the speed the vehicle was travelling at the time of approaching the culvert. At best one can say it was probably travelling at a speed greater then [than, sic] 42km/h and no more then [than, sic] 74km/h when it approached the culvert. Unsurprisingly Dr Grigg found the speed was not the major significant cause of this incident*. Mr Boyd also found that speed was not the most obvious reason the vehicle left the road. I agree with their findings…". [*Dr Grigg gave evidence that the bend was such that it might have been navigated at 74km/h.] Appeals are about the correction of error. The Industrial Magistrate's finding was plainly open to His Honour. [8] Consideration of the other issues identified at [5] above was embarrassed by the circumstance that Mr Dalla Costa, who suffered head injuries (including brain damage) in the incident, had no memory of the incident. There were not eye-witnesses. The Industrial Magistrate was correct to consider the number of persons, vehicles or other objects which were, or might reasonably be expected to be at the scene of the incident. Indeed, His Honour was required to do so by the definition at s. 328A of the Criminal Code. The Industrial Magistrate was also correct to identify that the focus was on real, not speculative danger to a human being or human beings who may be on, or in the vicinity of the road-way where the driving takes place, compare McBride v The Queen4 at 49 per Barwick CJ and Jiminez v The Queen5 at 579 per Mason CJ, Brennan, Dean, Dawson, Toohey and Gaudron JJ. Given the time of the incident (between 5.00 a.m. and 5.15 a.m.) on a winter morning and the evidence of Sergeant Price and Mr Holt (a resident) that traffic would be very light, the Industrial Magistrate was correct to identify the potential risk of the presence of other vehicles, as slight. The evidence of Mr Holt about the number of pedestrians at 5.00 a.m. was rightly rejected. Mr Holt made the concession in cross-examination that his ability to see such a number of persons was "probably quite limited". 4 McBride v The Queen (1966) 15 CLR 44 5 Jiminez v The Queen (1992) 173 CLR 572 -- 2 of 3 -- 3 [9] The Industrial Magistrate's ultimate conclusion was: "42 This momentary inattention occurred at 5.15am on a weekday in the middle of winter on a road when there were no other vehicles or pedestrians present. Such inattention could, on a busier street or at a busier time on that street when there would be other vehicles driving in the opposite direction or pedestrians walking along the street, be viewed to be objectively dangerous to the public. Here, because of the quietness of the street I am not satisfied (as I must be on the balance of probabilities) that the driving was dangerous.". That Conclusion was reasonably open. The decision has some similarity to the decision of the Full Court in Grant v Shaw, ex parte Shaw6. Inattention is not decisive. It depends on the circumstances, compare McBride v The Queen7 at 53 per Barwick CJ. [10] The test is objective. Fault is not an element, see R v Bathe [2006] QCA 2018. The Industrial Magistrate referred to that point. [11] The Order of the Court is that the Appeal is dismissed. I reserve all questions as to costs. Dated 27 June 2011. D.R. HALL, President. Released: 27 June 2011 Appearances: Mr M.T. O'Sullivan, instructed by Cooper Grace Ward, Solicitors for the Appellant. Mr P.B. O'Neill, directly instructed for the Respondent. 6 Grant v Shaw, ex parte Shaw [1964] QWN 15 7 McBride v The Queen (1966) 15 CLR 44 8 R v Bathe [2006] QCA 201 -- 3 of 3 --