The onus is on employees in worker compensation claims

Mr Kemp was a truck driver for KNS Freighters. He was involved in an accident on May 20, 2008. At the time in question he was driving a prime mover and carrying a 30-tonne load of magnesite. As Kemp was driving around a corner at an appropriate speed he perceived the truck was about to crash and unlocked his seatbelt and hid under the dashboard. The ensuing accident caused a disc protrusion in his lumber vertebrae.

Kemp argued the injury arose during the course of his employment. There were disentitling provisions in the relevant workers’ compensation legislation. The provisions render such a claim non-compensable where the employee voluntarily and unreasonably submits himself to an abnormal risk of injury.

Mr G Kenny, a senior member of the Administrative Appeal Tribunal, accepted the fact Mr Kemp suffered a soft tissue injury as a result of the truck rollover. However, in paragraph 93 of the judgement, Kenny stated:

“Mr Kemp’s evidence was that he consciously chose not to wear a seatbelt in an accident, preferring to find security in taking up a position under the dashboard. That strategy clearly reflects the full understanding of and acceptance of the risks of not wearing a seatbelt…I am satisfied that Mr Kemp’s consequential back strain was suffered because he voluntary and unreasonably submitted to an abnormal risk.”

As a result, the claim for worker’s compensation was rejected. What is most enlightening about this decision is the following:

1. 1. Where there are policies and procedures, which are enforced and understood by employees, the failure to abide by those policies and procedures will mean that any claim for compensation will be rejected.

1. 2. Although not an issue in this case, the business had clearly done everything “reasonably practicable” to prevent an injury and the employee consciously decided to ignore all the reasonable safety steps taken by the employer. The employee would not be liable for a prosecution under the OH&S legislation. Had the regulator sought to prosecute this claim, he would have inevitably been unsuccessful.

1. 3. If a common law claim was raised by the driver in this case, he would have been unsuccessful. That is because Kemp’s actions were outside his requirements of employment and contrary to policies and procedures.

1. 4. As a result, the lesson here is very clear. Where you implement policies and procedures that are relevant and proper, reflect the law as it stands at the time, and are regularly enforced, the failure by an employee to follow the policies and procedures may lead to his or her claim for compensation being rejected, preventing prosecution and avoid other common law liabilities for any injury suffered.