Reversing the onus of proof in journey claims: deceased worker unable to explain substantial deviation

06 April 2022

The Industrial Court found a worker’s claim should be rejected where the worker could not provide an explanation for a 7-hour interruption in a journey claim.

The background

The deceased worked as a diesel fitter in Middlemount, Queensland, and was involved in a single vehicle motor vehicle accident on 22 August 2017, on his way home from work.

The application for compensation was rejected at first instance by the insurer, with that decision affirmed on review by the Regulator. The Regulator found there was a ‘substantial interruption’ to the worker’s journey, due to an unexplained 7-hour delay in making the journey, and thus excluded under section 36(2) of the Workers' Compensation and Rehabilitation Act 2003 (WCRA).

In issue

The respondent, as the administrator of the estate, brought a successful appeal to the Queensland Industrial Relations Commission (QIRC), overturning the decision of the Regulator. The Regulator then brought an appeal to the Industrial Court, seeking the QIRC decision to be set aside, and the Regulator’s decision be affirmed.

In this case, there was an unexplained 7-hour interruption in the worker’s journey home, when the motor vehicle accident occurred. This was calculated on the difference between the expected journey time, and the actual journey time.

Section 36 provides that an injury to a worker is taken not to arise out of, or in the course of, the worker’s employment if the event happens during or after a substantial interruption of the journey, and regard must be had to (1) the reason for the interruption and (2) the actual or estimated period of time for the journey in relation to the actual or estimated period of time for the interruption.

The Regulator argued this 7-hour gap constituted a substantial interruption, therefore excluding the claim. The Regulator contended that the size of the time gap is consistent with substantial interruption, and more expressly stated ‘there is simply no evidence to explain the delay at all.’

The decision on appeal

The Industrial Court found that the onus rested on the worker to prove that the exception to the exclusion in section 36 of the WCRA applied. The respondent was unable to produce satisfactory evidence to explain the interrupted journey. The Regulators’ appeal was allowed, and the respondent ordered to pay their costs of the hearing before the Commission.

Implications for you

This decision makes clear that the onus of disproving a substantial interruption lies with the worker, and that persuasive evidence must be led to explain any interruption or delay.

Workers' Compensation Regulator v McCool (as administrator of the estate of Shane Patrick McCool) [2022] ICQ 4

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