Author: Georgina Wong

President Hall of the Industrial Court upheld the Industrial Magistrates’ Court’s decision that driving a motor vehicle in excess of the speed limit into a residential home does not amount to a contravention of 328A of the Criminal Code in respect of dangerous driving.

A Driving Disaster

On 29 July 2009, sometime between 5.00 am and 5.15 am, Peter Dalla-Costa got into his 6 cylinder automatic Ford sedan motor vehicle and started the journey from his home to his place of employment at Hendra. 

He travelled down his street and around the corner, but then drove over to the right hand side of the road and mounted the footpath.  His car then crashed into a guardrail surrounding a culvert and was thrown back over to the left side of the road through a yard before crashing into a house.

Mr Dalla-Costa suffered severe injuries and in particular brain damage when his head was struck by the metal guardrail.  He was treated at hospital for around 13 weeks for his injuries.

Compensation Claim Rejected

Workers who are injured on the way to work are entitled to workers compensation.  However, that does not apply where the worker is driving a car and commits the offence of “dangerous driving”­ (s. 36(2)(a)(ii) of the Workers Compensation and Rehabilitation Act 2003).

Mr Dalla-Costa’s employer, a self insurer, understandably rejected the claim on that basis.  Q-Comp overturned that rejection and the self insurer appealed that decision.

“But I Wasn’t Convicted!”

Mr Dalla-Costa argued that the exception did not apply to him because he was not convicted of the offence of dangerous driving. 

The court agreed with the self insurer that a conviction was not required to exclude the right to compensation.  All that mattered was that the worker had in fact committed dangerous driving.

Dangerous Driving

The self insurer argued that Mr Dalla-Costa had committed dangerous driving by:

• Driving in excess of the speed limit of 50 kph;
• Allowing the vehicle to cross to the wrong side of the road;
• Allowing the vehicle to mount the footpath and strike a barrier and then hit a house.

There was no evidence that there was a mechanical fault with Mr Dalla-Costa’s motor vehicle or that he suffered from a medical condition that caused him to lose control of the vehicle.

Police conducted a speed analysis at the site after the accident and determined that Mr Dalla-Costa was travelling at a speed of around 96 kph when the accident occurred (almost double the speed limit).  Independent Engineers engaged by Mr Dalla-Costa concluded that he was probably travelling at a speed of around 74 kph (a mere 50% over the limit!).  Their evidence was preferred to the police estimate.

Dr Grigg gave evidence that the cause of Mr Dalla-Costa’s accident was not speed but that the car had travelled on to the footpath (from the wrong side of the road) and had crashed into the metal guardrail. The Industrial Magistrate agreed with that finding.

One must wonder what caused the car to cross out of control onto the wrong side of the road and mount the footpath at speed if it was not speed, medical condition or mechanical defect?

The Industrial Magistrate allowed Mr Dalla-Costa’s claim and found that:

• Everything that happened after Mr Dalla-Costa lost consciousness was not the result of his action and could not represent dangerous driving (although he lost consciousness because he could not keep his car from driving at speed into a guard rail).
• As the accident occurred early in the morning and there were few or no people in the vicinity.
• His actions did not amount to “dangerous driving” because there was no real prospect of harm to the general public from his actions.

The self insurer appealed that decision to the Industrial Court, but had no better luck there.  President Hall agreed with the Industrial Magistrate’s reasoning that a contravention of Section 328A of the Criminal Code must involve a real, and not speculative, danger to human beings who may be in the vicinity of the roadway where the driving took place.

Summary

Evidently driving at 50% over the speed limit, jumping a curb, crashing into a barrier and then a house is not “dangerous” if there is no-one around.

The finding that Mr Dalla-Costa was not responsible for the movement of the vehicle after he lost consciousness seems to overlook why he lost consciousness – he lost control of the car at speed and hit a barrier.

The explanatory notes to the legislation that enacted the exclusion for journey claims resulting from dangerous driving provided:  WorkCover Queensland Bill 1996 at page 21 state that:

“The circumstances when journey claims are not payable have been expanded to include where the event causing the injury was partly or wholly caused by the fault of the worker i.e. a worker’s actions. ……. These exclusions will limit employer’s responsibility for claims where the worker is directly responsible for the injury”.

It seems Parliament intended to exclude compensation for injuries where the worker was directly responsible for causing his or her injury.  In this case however one must wonder whether Parliament’s intentions have been given effect.

Tags: Georgina