In the recent decision of Workers' Compensation Regulator v McCool (as administrator of the estate of Shane Patrick McCool) [2022] ICQ 4 the Industrial Court of Queensland considered the operation of the journey claim provisions of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (the Act) in the context of an inexplicable five to six hour difference between the expected journey time and the actual journey time.
Partner Anna Hendry and Vacation Clerk Nick Lahey reviews the Industrial Court decision and provides key takeaways for employers.
Background/Facts
The respondent’s late husband, Mr Shane McCool, worked for Blunt Global Services Pty Ltd as a diesel fitter in Middlemount, Queensland. Mr McCool passed away on 6 September 2017 following a single vehicle motor vehicle accident that occurred on 22 August 2017. He had been travelling from his place of work to his home near Townsville.
In the days prior to the accident, Mr McCool was unwell and did not work his shifts on 20, 21 or 22 August 2017. When he informed medical staff at the mine of his intention to drive himself home via Moranbah on 22 August 2017, he was advised to drive cautiously and rest if fatigued.
The application for compensation was originally rejected by the insurer and the Workers’ Compensation Regulator on the grounds that time between Mr McCool’s estimated departure at around 2pm and the crash at around 10:30pm was consistent with a ‘substantial interruption’ (and thus excluded under section 36(2) of the Act), given he had only covered 222 kilometres in eight and a half hours.
In particular, section 36(2) of the Act provides that an injury is not considered to be in the course of employment if it occurs after a substantial interruption of, or deviation from, the journey specified in section 35 of the Act, unless the reason for this delay can be explained as something connected with the worker’s employment or is due to circumstances that were beyond the worker’s control.
The first instance decision
The rejection of the claim was overturned on appeal to the Queensland Industrial Relations Commission (QIRC). While the QIRC accepted that there had been a substantial interruption, it was then required to consider whether the interruption arose from a reason connected with Mr McCool’s employment or a reason beyond his control such that the exception to the exclusion applied. In the absence of any evidence as to the reason for the interruption and noting the evidence that Mr McCool had been instructed to rest if he felt fatigued, the QIRC accepted that fatigue breaks were the most likely reason for the delay and that they were either connected to his employment or beyond his control and thus constituted an exception to the exclusion. In doing so, the QIRC noted the beneficial nature of the Act and found that it would be contrary to deprive the appellant from compensation simply because she could not provide a positive explanation for her late husband’s interrupted journey.
The appeal decision
The Workers’ Compensation Regulator appealed the QIRC decision to the Industrial Court. In particular, the Workers’ Compensation Regulator contended that ‘whilst the Commissioner advanced the theory that it was plausible that Mr McCool may have attempted to manage his fatigue during the journey, he specifically rejected that possibility as he could not '...confidently make a finding to that effect on the balance of probabilities'.1 In considering that proposition, the Industrial Court found that the onus rested on the worker to prove that the exception to the exclusion applied and that in this instance there was no evidence before the QIRC on which to validly draw an inference that Mr McCool took steps to manage his fatigue during the journey. In making this finding, the Industrial Court found that section 36 of the Act applied to exclude the claim.
Takeaway points
- The QIRC is prepared to find a substantial interruption based on the difference between the expected journey time and the actual journey time.
- The onus of proof as to whether the substantial interruption was a work related interruption or one beyond the workers’ control lies with the worker.
If you would like further information or assistance with a related matter, please contact our Insurance & Risk team.
Footnotes
1 McCool v Workers' Compensation Regulator [2021] QIRC 374 at [66]