February 15, 2016

An employer who fought all the way to prevent an appliance repairer getting Workers’ Compensation for injuries received from a mining camp assault has had its objections tossed out by the Queensland Industrial Court because the worker “was doing the very thing the company had encouraged him to do”.

Shane Cumbers worked at the Moranbah camp on 15 December 2010 and finished work at around 4.30pm after which he joined in social drinks – where some were also sharing marijuana – in an area behind the village kitchen.

Although contrary the policy of camp operator Civeo, such conduct was condoned by site management.

He retired to his allocated room at approximately 11pm, locked the door and slept until he was set upon at approximately 1.50am by a person who had obtained the master key.

He identified his assailant as one of the people who had been at the gathering who did not work for Civeo.

Cumbers made a time-off-work claim for his psychological and minor physical injuries.

The Regulator accepted that claim but Civeo successfully appealed in the Queensland Industrial Relations Commission where it was accepted that Cumbers was a worker, had suffered severe PTSD and that his injuries arose out of or in the course of employment.

But the Commission held that his employment was “not a significant contributing factor to the injury” and thus the decision of the Regulator was reversed.

As part of his ordinary duties, Cumbers was required to travel between five Civeo accommodation sites in the Bowen Basin region, namely, Moranbah, Dysart, Middlemount, Copperbella and Nebo Junction.

Although his contract was silent as to the provision of accommodation he was induced and encouraged – as he lived some 300 km away – to stay at the Moranbah village’s no charge camp which also provided meals.

Supreme Court Justice Glen Martin examined the Commission’s conclusion that the assault was the cause of the injury and the only role played by Cumbers’ employment was to provide a setting in which it occurred.

While the intruder was the immediate instrument of the injuries, “his employment led to the practical requirement to live at the camp during his shift cycle,” noted the Judge. “But for that, he would not have met nor have been assaulted by the other worker.”

And if “the employee must be doing the very thing that the employer encouraged the employee to do, when the injury occurs,” the requisite employment connection will usually be made out.

That the evidence established that the system used for security of the master key was insufficiently secure was irrelevant. The Court was not concerned with blame and was solely focused on whether the injury arose out of employment or whether the employment was a significant contributing factor.

The policies promulgated by Civeo concerning conduct to be observed in the camp of their very nature, of themselves, creating a strong connection between the subject matter of the policies and the employment.

Concluding that the place where an injury occurs can equally establish the required employment connection as can the doing of an activity, Justice Martin found in favour of the worker.

“Cumbers’ injury occurred at and by reference to a place and in circumstances where the employer had induced or encouraged him to be. His injury arose out of or in the course of employment.”

WorkCover must, therefore, make up his unpaid weekly compensation and he also meets the gateway requirements to bring a damages lawsuit against Civeo for negligence.

Simon Blackwood (Workers’ Compensation Regulator) v Civeo Pty Ltd and Anor [2016]  Martin J, President 20/01/2016

Categories: Personal Injury , Litigation & Law Practice

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