Carolan v WorkCover Queensland [1999] ICQ 38 (1999) 161 QGIG 273

272 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 30 July, 1999 30 July, 1999 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 273 ################################IH/#######################-1#/#######################ll####################################ffl# QUEENSLAND INDUSTRI.r'\L COURT WORKCOVER QUEENSLAND ACT 1996 Workplace Relations Ac1 1997 - s. 360(3) -appeal from decision of industrial magi.straie Charmaine Carolan Al\D WorkCover Queensland (No. C82 of 1998) JUSTICE MOYNIHAN, ACTING PRESIDENT REPORT ON JUDGMENT (as edited) In giving his Judgment from the Bench on 9 June 1999, the Acting President said:- 16 July 1999 "This is aJ1 appeal from the decision of an Industrial Magistrate which refused the applicant's claim for workers' compensati on. The accident or the mcidem occurred in the following c1rctm1s1ances. The applicant was returning to her office having delivered some documents and was asked by a customer for assistance. While she was engaged in providing that assisrance a fellow employee playfully took her hat, which apparemly she wore in the context oI her employment, from her head. Jn fact, I think, there's some suggestion that she was required to wear it but be that as it may she then asked several times for the return of the hat and it was eventually given to her. ::ODMA\GRPWISE\QIRC-DOM.JRO-POI.GENERALI :2921 l .JQGIG 30nl99 -- 1 of 2 -- 274 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 30 July, 1999 "When she retrieved it she - as the Magisttate found - playfully tapped the employee on the shoulder and started to walk away. At that stage the other employee then playfully kicked out at her and connected with her hand and broke a bone in her left hand. The Magisttate concluded that, in the circumstances, the injury didn't occur within the scope of the employment. It didn't arise out of or in course of the employment -bearing in mind, of course, that the definition continues 'if the employment is a major significant factor in causing the injury.'. The Magistrate found and, no doubt, it was true tha.t the injury was not sustained while the appellant was carrying out her duties as a cashier. He however, accepted that she was expected to provide customer service, as she was doing, as part of her employment responsibilities. He concluded that she desisted from her employment duties, albeit, for a short time and consequently the injury was not work related. Ill my view, in reaching that conclusion, the Magh'trate erred. The injury - and I don't need to repeat the circumstances ill which it occurred - was, in my view, rightly characterised as having arisen out of the course of employment in the context of the employment constituting a major significant factor causing the injury. There was no doubt that until she had reu-ieved her hat she was engaged in the course of her employment and the incident which thereafter occurred, which led to the injury, was simply bound up in the events which had gone before, and those involved providing customer service. It's one of those cases where a fact situation is close to the line but the fact situation in this case is one where the application for compensation ought to have been allowed and . I therefore uphold the appeal and -order that the application for compensation be allowed.''. Dated this sixteenth day of July, I999. By the Court, [L.S.] E. EWALD, Industrial RegiStcar. Released: 16 July, 1999 Appearances:- Mr P . Rashleigh (insttucted by Sciacca's Lawyers) for the Appellant. Mr A. Horneman-Wren insuucted by and on behalf of WorkCovec Queensland. ########################################################################################################################### 30 July, 1999 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 275 -- 2 of 2 --