Krleski v Simon Blackwood (Workers’ Compensation Regulator) [2015] ICQ 6

The worker/appellant suffered a “multi organ impairment (aspiration pneumonia, septic shock – rhabdomyolisis, liver damage) and acquired severe brain injury”. The injury occurred whilst the worker was in accommodation off the Daunia Mine near Moranbah, which was not affiliated to his employer. His work cycle was 10 days on consecutively and 4 days off.

The Deputy President found the injury occurred sometime after 9.30pm on 12 April 2012 and before 4.30am on 13 April 2012, whilst in his accommodation.

The worker did fall within s.32(1):

“(1) An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury.”

The issue was whether section 34(1) applied:

“(1) An injury to a worker is taken to arise out of, or in the course of, the worker’s employment if the event happens on a day on which the worker has attended at the place of employment as required under the terms of the worker’s employment—…”

The Deputy President found that a day was that period of time begins with one midnight and ends with the next and not the consecutive period.

The appellant argued:

“…a “day” should be regarded as each 24 hour period from the time he commences work until he completes his cycle of 10 shifts. Reliance for that proposition is placed on the decision in Cornfoot v Royal Exchange Assurance Corporation[3].”

President Martin J found that in the absence of a definition of a day in the WCRA, the ordinary meaning applied:

[17] In the absence of a definition of “day” in the Act which would allow its meaning to differ according to the circumstances of an individual, the ordinary meaning should be adopted as described by Windeyer J in Prowse v McIntyre[7]:

“A day, the period of the earth’s axial rotation, is the natural and fundamental division of time. A day for legal purposes is the mean solar day, a period of twenty-four hours. These hours are reckoned from midnight to midnight, the instant of midnight being both the end of one day and the beginning of the next, for there are no rests in time, and as each instant comes it goes. A day has a significance for law in two ways: first, as a division of time, that is the space of time within which an event happened or is to happen, or something was done or is to be done: secondly, as a. measure of the passage of time, a unit in a period of time.” (emphasis added)

[18] In the absence of any evidence as to the time of the “injury”, the Deputy President was correct in holding that the appellant had not discharged the onus upon him of showing that the “injury” occurred “on a day on which the worker has attended at the place of employment.”

David Cormack – Brisbane Barrister & Mediator

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