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Serious and wilful misconduct

1987 Act s 14 Conduct of worker  >>

Vinidex PL v Campbell [2012] NSWWCCPD 6. Roche DP.

Application of s 14 of the 1987 Act

45. Before addressing the parties’ submissions it is appropriate to consider the approach that must be adopted in the present circumstances where reliance is placed upon the provisions of s 14 of the 1987 Act.

It was put by the appellant, as noted at [29] above, that there is a need for the Commission to first determine whether injury as defined in s 4 has been proven before embarking upon a consideration of the relevance and application of the provisions of ss 9A and 14.

46. The question as to the proper approach was addressed by Neilson J in Stojkovic v Telford Management Pty Ltd (1998) 16 NSWCCR 165 at [48]:

“The first thing to note, however, is that I have been addressed at some length about the applicability of s 14.

“However, it must be borne in mind that it has been settled law in this State since 1956 that before one even turns to s 14, that the worker must prove before then an injury either arising out of or in the course of the applicant’s employment.

“That was the decision of the Full Court of the Supreme Court of this State in Love v Lysaght Works PL [1956] 30 WCR (NSW) 61. See also my judgment in Clyde v New South Wales (1995) 12 NSWCCR 541 at 561.”

47. The question arose more recently when considered by the Court of Appeal in Scharrer v The Redrock Co Pty Ltd [2010] NSWCA 365. In that matter Handley AJA expressed the opinion that s 14(1) “applies to an injury defined in s 4” - at [189] - and that:

“s 14(2), as the text indicates, does not deal with the scope of the worker’s employment. It assumes an injury which arises out of or in the course of the worker’s employment which created a prima facie entitlement to compensation. It then denies that entitlement in cases of proved serious and wilful misconduct except where the injury results in death or serious and permanent disablement”, at [200]. ...

49. ... the authorities just mentioned make it clear, in my view, that in circumstances such as the present it is appropriate first to consider the issue of s 4. Only then, upon the assumption that injury has been established and s 9A is satisfied, is it appropriate to consider s 14(2). ...

Coles Myer Logistics PL v Lee [2007] NSWWCCPD 141 Roche DP.

[72]: "The Appellant Employer's argument is that it only had to prove that the injury was solely attributable to Mr Lee riding his motorcycle whilst under the influence of alcohol. That is not correct.

To successfully rely on this section an employer must establish that the injury was 'solely attributable to the serious and wilful misconduct of the worker'.

Therefore, it must first be established that the conduct complained of was "serious and wilful misconduct'.

O'Meally J considered this phrase in Sawle v Macadamia Processing Co PL [1999] NSWCC 26; (1999) 18 NSWCCR 109.

His Honour held that the word "wilful' connotes that the worker must have acted deliberately.

To establish serious and wilful misconduct, a person accused of it must be shown to have knowledge of the risk of injury and, in the light of that knowledge, to have proceeded regardless of the risk.

[73] In Murray v Moppett [1958] SR (NSW) 59 it was held that intoxication during employment can amount to serious and wilful misconduct.

[74] In Clyde v State of NSW (1995) 12 NSWCCR 541, Neilson J held that a truck driver was guilty of serious and wilful misconduct when, having consumed alcohol during his lunch break, he then drove his employer's truck and was involved in an accident.

The worker in that case had a blood alcohol reading of 0.146.

His Honour noted at 562:

"He consumed four standard drinks within a one hour period which he clearly knew should have placed him above the 0.05 blood alcohol level. Having done that, he chose to drive. It was misconduct and his action was deliberate i.e. wilful, in driving after consuming that amount of alcohol. It is also serious misconduct - he knew that there was a risk of his being a danger to himself and to others, if he drove "over the limit'."

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