QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:
	Kibria & Kibria v Workers' Compensation Regulator [2023] QIRC 288

PARTIES:	
	Kibria, Siddika & Kibria, Nafisa
(Appellants)

v

Workers' Compensation Regulator
(Respondent)
	
CASE NO:
	WC/2022/200
	
PROCEEDING:
	Appeal against decision of Workers' Compensation Regulator

DELIVERED ON:
	5 October 2023
	
HEARING DATES: 	7 September 2023
	
MEMBER:

HEARD AT:	Pidgeon IC

Brisbane

DATES OF WRITTEN
SUBMISSIONS
	Appellants’ outline of closing submissions filed 7 September 2023

Respondent’s outline of closing submissions filed 7 September 2023
	
ORDERS:
	1.	The Appeal is dismissed.

2. 	Pursuant to r 41(1) of the Industrial Relations (Tribunals) Rules 2011: 
	
(a) 	Costs are to be in an amount agreed,  or if the parties fail to reach agreement by 26 October 2023, the parties are to exchange and file written submissions on the costs of the hearing (of no more than two (2) pages, 12-point font size, line and a-half spacing with numbered paragraphs and pages) by 4.00 pm on 9 November 2023; and 
(b) 	 in the absence of any application to make oral submissions in respect of costs, the question of costs will be decided on any written submissions filed without further oral hearing. 
	
CATCHWORDS:	WORKERS' COMPENSATION – APPEAL AGAINST DECISION OF WORKERS' COMPENSATION REGULATOR – appeal against review decision of the Respondent –Appellants’ claim for compensation with respect to their deceased father and spouse – where the deceased worker was a maritime engineer working for the Respondent on its cruise ships operating in Australian waters – where the deceased worker worked on a roster – where the deceased worker did not return to his permanent residence in Parramatta, New South Wales between swings – where the deceased worker was residing at a hotel in Darwin, Northern Territory between swings at the time of his death – where the deceased worker was required to obtain a negative PCR test for COVID-19 before boarding the ship – where the facts involve interstate travel subject to State Government travel restrictions during COVID-19 – where the deceased worker’s cause of death was acute heart failure, ischaemic heart disease, coronary artery atherosclerosis and hypertensive heart disease – where it is not in dispute that the deceased worker sustained an ‘injury’ within the meaning of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 32 – whether the deceased worker was on an ordinary recess when he died pursuant to the Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 34 – whether the deceased worker was on a journey when he died pursuant to the Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 35 – where the deceased worker was not on an ordinary recess or a journey at the time of his death – appeal dismissed
	
LEGISLATION:
	Workers' Compensation and Rehabilitation Act 2003 (Qld) ss 32, 33, 34, 35, 36, sch 6	

CASES:	

Comcare v PVYW (2013) 250 CLR 246

Drummond v Drummond (1960) VR 462

Faelmann v Workers’ Compensation Regulator [2016] QIRC 036

Federated Municipal & Shire Council Employees Union of Australia v Shire of Albany (1990) 32 IR 470

Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473

Henderson v Commissioner of Railways (Western Australia) (1937) 58 CLR 281

Hospital Employees’ Industrial Union of Workers, WA v Proprietors of Lee-Downs Nursing Home [1977] WAIG 455

Humphrey Earl Ltd v Speechley (1951) 84 CLR 126

Johnston v Q-COMP [2007] QIRC 50

Kavanagh v Commonwealth (1960) 103 CLR 547

Krleski v Simon Blackwood (Workers’ Compensation Regulator) [2014] QIRC 067

Labaj v Workcover Queensland (2003) 174 QGIG 3

Landers v Dawson (1964) 110 CLR 644

Minister for Police v Western Australia Police Force Union of Workers (1969) 59 WAIG 993

Nazar v Hydro Electric Corporation [2022] TASFC 11

Pearson v Fremantle Harbour Trust 42 CLR 320

Qantas Airways Limited v Q-COMP [2006] 181 QGIG 301

Sarkaria v Workers’ Compensation Regulator [2019] ICQ 1

State of Queensland (Queensland Health) v Q-Comp and Beverley Coyne [2003] ICQ 9; (2003) 172 QGIG 1447

Tooth and Co Ltd T/AS Mona Vale Hotel v Injac (1994) 10 NSWCCR 437

Workcover Queensland v Dreadon [1999] QIC 47
	
APPEARANCES:	Mr T. Spence of counsel instructed by Mr B. Holt of Bridge Brideaux Solicitors for the Appellants.

Mr P. O’Neill of counsel directly instructed by Ms C. Shedden of the Workers’ Compensation Regulator.	

Reasons for Decision
	
	Introduction 

[1]	Mr Kibria was a maritime engineer who was employed by CPC Services (NQ) Pty Ltd from 20 February 2021 until his death on or about 28 July 2021. Mr Kibria is survived by his wife Siddika Kibria, and his two daughters Nafisa Kibria and Nasheeta Kibria who were 25 years old and 20 years old respectively when their father died.

[2]	Ms Siddika Kibria and Ms Nafisa Kibria (‘the Appellants’) appeal the decision of the Workers’ Compensation Regulator (‘the Regulator’) dated 3 November 2022, which confirms the decision of WorkCover Queensland (‘WorkCover’) on 22 April 2022 to reject their dependency claim made pursuant to the  Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 32 (‘the WCR Act’) relating to the unfortunate death of Ms Siddika Kibria’s husband and Ms Nafisa Kibria’s father, Mr Shoaib Kibria. 

Scope of this appeal

[3]	There are three issues for determination in this appeal:
	
(a)	Whether Mr Kibria sustained an injury within the combined meaning of sections 32(1) and 34(1) of the WCR Act;
(b)	Whether Mr Kibria was on an ordinary recess at the time that he suffered his heart attack within the meaning of section 34(1)(c) of the WCR Act; and

(c)	Whether Mr Kibria was on a journey within the meaning of section 35 at the time that he suffered his heart attack;

[4]	It must be noted that if Mr Kibria’s death occurred during an ordinary recess or a journey, his employment need not have been a significant contributing factor to the injury for the claim to succeed. 

[5]	To set aside the Regulator’s decision, I must be satisfied that the factual situation is such that the worker has suffered an injury within the meaning of the WCR Act.

[6]	The Appellants bear the onus of proof  and the standard of proof is on the balance of probabilities. The tribunal must feel an actual persuasion before the alleged facts put forward can be found to exist.

Legislation

[7]	Section 32 of the WCR Act defines ‘injury’ as follows:

32 	Meaning of injury

(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.

(2)	However, employment need not be a contributing factor to the injury if section 34(2) or 35(2) applies.

(3)	Injury includes the following—

…

(d) 	death from injury arising out of, or in the course of, employment if the employment is a significant contributing factor to causing the injury;

(e) 	death from a disease mentioned in paragraph (a), if the employment is a significant contributing factor to the disease;

(f) 	death from an aggravation mentioned in paragraph (b), if the employment is a significant contributing factor to the aggravation.

[8]	Subdivision 3 of the WCR Act relevantly provides:

33	Application of sdiv 3

This subdivision does not limit the circumstances in which an injury to a worker arises out of, or in the course of, the worker’s employment.

34	Injury while at or after worker attends place of employment

(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—

(a)	while the worker is at the place of employment and is engaged in an activity for, or in connection with, the employer’s trade or business; or

(b)	while the worker is away from the place of employment in the course of the worker’s employment; or

(c)	while the worker is temporarily absent from the place of employment during an ordinary recess if the event is not due to the worker voluntarily subjecting themself to an abnormal risk of injury during the recess.

(2)	For subsection (1)(c), employment need not be a contributing factor to the injury.

35	Other circumstances

(1)	An injury to a worker is also taken to arise out of, or in the course of, the worker’s employment if the event happens while the worker—

(a)	is on a journey between the worker’s home and place of employment; or

…

(2)	For subsection (1), employment need not be a contributing factor to the injury.

(3)	For subsection (1), a journey from or to a worker’s home starts or ends at the boundary of the land on which the home is situated.

(4)	In this section—

home, of a worker, means the worker’s usual place of residence, and includes a place where the worker—

(a)	temporarily resided before starting a journey mentioned in this section; or

(b)	intended to temporarily reside after ending a journey mentioned in this section.

36	Injury that happens during particular journeys

(1)	This section applies if a worker sustains an injury in an event that happens during a journey mentioned in section 35.

(2)	The injury to the worker is not taken to arise out of, or in the course of, the worker’s employment if the event happens—

…

(b) 	during or after—
(i)	a substantial delay before the worker starts the journey; or

(ii)	a substantial interruption of, or deviation from, the journey.

(3)	However, subsection (2)(b) does not apply if—

(a)	the reason for the delay, interruption or deviation is connected with the workers’ employment; or

(b)	the delay, interruption or deviation arises because of circumstances beyond the worker’s control.

(4)	For subsection (2)(b)(i), in deciding whether there has been a substantial delay before the worker starts the journey, regard must be had to the following matters—

(a)	the reason for the delay;

(b)	the actual or estimated period of time for the journey in relation to the actual or estimated period of time for the delay.

(5)	For subsection (2)(b)(ii), in deciding whether there has been a substantial interruption of, or deviation from the journey, regard must be had to the following matters—

(a)	the reason for the interruption or deviation;

(b)	the actual or estimated period of time for the journey in relation to the actual or estimated period of time for the interruption or deviation;

(c)	for a deviation—the distance travelled for the journey in relation to the distance travelled for the deviation.

…

[9]	Schedule 6 of the WCR Act defines ‘place of employment’ as follows:

place of employment means the premises, works, plant, or place for the time being occupied by, or under the control or management of, the employer by whom a worker concerned is employed, and in, on, at, or in connection with which the worker was working when the worker sustained injury.

	The Appellants’ case

[10]	The Appellants’ case is that when Mr Kibria died, he was:

(a)	temporarily absent from the place of employment during an ordinary recess within the meaning of s 34(1)(c) of the WCR Act; or in the alternative,

(b)	was on a journey between the workers’ home and place of employment within the meaning of s 35(1)(a) of the WCR Act.

[11]	The Appellants further submit that the provisions of s 36(2) do not apply by reason of s 36(3)(a) and (b) of the WCR Act as:

(a)	The reason for the delay, interruption or deviation was connected with Mr Kibria’s employment; or

(b)	The delay, interruption or deviation arose because of circumstances beyond Mr Kibria’s control – namely the requirement to return a negative COVID-19 test prior to boarding the Coral Geographer. 

[12]	The Appellants seek that the decision of the Respondent’s review unit be set aside and substituted with a decision accepting the claim for compensation. 

	The Respondent’s case

[13]	The Respondent submits that given the evidence before the Commission regarding what occurred on 27 and 28 July 2021, the Commission can be satisfied on the balance of probabilities that at the time Mr Kibria had his heart attack:

(a)	He was in a period where he was not rostered for work, was not working and had not been performing work duties for a significant period of time since 24 May 2021.

(b)	Mr Kibria’s heart attack was due to longstanding lifestyle factors and therefore did not arise out of, or in the course of his employment as a First Engineer with Coral Expeditions. 

(c)	That Mr Kibria’s employment with Coral Expeditions was not a significant contributing factor to his heart attack. 

(d)	As a consequence, section 32(1) and section 34(1) of the Act are not satisfied. 

(e)	Mr Kibria died in a hotel room that he had booked and paid for, and which therefore constituted his temporary place of residence. He could not have been on a journey between his place of employment and his home. Therefore, section 35 of the Act is not enlivened in the circumstances. 

(f)	Further, the Respondent submits that the Commission would also be satisfied that [Mr Kibria] was not on an ordinary recess given he had not undertaken any work duties since 24 May 2021 and was not due to commence his next swing until 5 August 2021.  Such an extended break is completely inconsistent with what the authorities indicate an ‘ordinary recess’ to be.

	Background: Mr Kibria’s employment and circumstances at the time of his death

[14]	Mr Kibria’s normal place of residence was Parramatta, New South Wales. 

[15]	On 1 February 2021, Mr Kibria signed an offer of employment from CPC Services (NQ) Pty Ltd T/as Coral Expeditions received on 26 January 2021 which included the following relevant terms:

1.	Position

1.1	Your employment will be on a fulltime basis.

1.2	Your employment will commence on 20th February 2021.
…
1.4 	You will be required to perform your duties on your assigned vessel or elsewhere as reasonably directed by the employer.
…

3. 	Remuneration

3.1 	You will be paid at the rate of $95,000 per annum.

3.2 	You will receive your salary in 26 equal payments each pay period regardless of whether you are at sea, on maintenance or office duties or on leave that you requested or on a normal rostered day off.
…

4. 	Hours of Work & Sea Days
…
4.2	You will work a minimum of 185 days in a 12-month period. Additional days will be paid at the daily rate. 

4.3	You will be rostered off for one hundred and eighty days (180) days each year which includes your twenty (20) days annual leave.

4.4	Work performed carrying out rostered maintenance or office days will be treated as sea time.
	…

[16]	A work agreement annexed to the offer of employment letter describes Mr Kibria’s ‘place of work’ as follows: ‘You may be employed on any vessel owned and operated by the company’.

[17]	Mr Kibria would fly to locations where the cruise ships were leaving at the expense of Coral Expeditions. The cruise ships were operating in Australian waters sailing between Western Australia and the Northern Territory during the relevant period, known as ‘the Kimberley season’.

[18]	The last ‘swing’ Mr Kibria undertook saw him depart Sydney on 23 May 2021. On 24 May 2021, Mr Kibria boarded the Coral Adventurer ship in Broome, Western Australia.  

[19]	Mr Kibria disembarked the Coral Adventurer in Darwin, Northern Territory on 24 June 2021.

[20]	From 24 June 2021, Mr Kibria was ‘rostered off from work’ and the company had no expectation that he undertake any work during that time. What was required, however, is that Mr Kibria would be back in Darwin in time to undertake a polymerase chain reaction (‘PCR’) test for COVID-19 and other pre-boarding requirements prior to commencing work once again from 5 August 2021.  

[21]	Due to Western Australia’s strict COVID-19 measures in place at the time, any employee who travelled outside of Western Australia or the Northern Territory during their rostered time off would be required to return to Darwin earlier to ensure that by the time the Coral Adventurer arrived in Broome, no member of the crew had been in a ‘high risk’ COVID-19 location for 14 days. 

[22]	It is uncontroversial that Mr Kibria made a choice to remain in the Northern Territory and Western Australia during the period he was rostered off. Mr Kibria did this at his own expense. 

[23]	It appears that Mr Kibria was aware that if he returned to his residence in Sydney, New South Wales he would be required to undertake a period of isolation upon return to Darwin due to COVID-19 measures in place at the time. I also note that at this time, it was not unusual for governments to implement ‘lockdowns’. Mr Kibria would have likewise been aware of the possibility that while at his residence, a lockdown may be imposed, thereby impacting on his capacity to return to Darwin.

[24]	Mr Kibria was not directed or encouraged to remain in Western Australia and the Northern Territory during his rostered time off. The evidence of Ms Lisa Clarke, Human Resources Manager of Coral Expeditions, was that there were other employees who travelled back to other states and were required to undertake a quarantine period upon return to Darwin in order to be ready for the roster commencing on 5 August 2021. Ms Clarke gave the following evidence in chief:

Mr Spence: 		In terms of having staff arrive in Darwin required to get PCR testing, was there ever a situation where any other staff member had to extend accommodation?

Ms Clarke: 		This is a unique situation because Shoab had, of his own volition, stayed in Northern Western Australia and the Northern Territory in between disembarking from Coral Adventurer at the end of his last swing to when he was due to re-join. So he accommodated himself during that time. That’s why it’s unique, because he was accommodating himself during that time. If – under normal circumstances, we would fly crew the day before, on this particular time, we were flying them four days before.

Commissioner: 	So they could get the PCR test as well?

Ms Clarke: 		So they could isolate and undertake the PCR test. The main reason we were sending them four days before was because WA had very strict guidelines, and people had to be out of risk of COVID for 14 days before arriving to Broome. So by bringing the crew to Darwin four days before, they were basically in a bubble and isolating in hotels before joining the vessel and undertaking the PCR test. So that’s why this was unique.

[25]	It appears that Mr Kibria was in Western Australia for the bulk of his rostered time off and that he returned to Darwin on or about 23 July 2021, when he booked into the Argus Hotel in Darwin.  

[26]	Mr Kibria was paying for his accommodation personally. 

[27]	Mr Kibria was rostered to commence a cruise on the Coral Adventurer leaving Darwin on 5 August 2021.  

[28]	For the ‘rostered off’ period from 25 June 2021 to 5 August 2021, Mr Kibria continued to be paid per his employment conditions set out above at [15].  

[29]	Ms Clarke’s evidence was that the company had instituted a practice of providing pre-boarding accommodation for employees ‘serving’ their quarantine period at the ‘H Hotel’ in Darwin.  However, at the time relevant to this appeal, due to COVID-19, the voyage of the Coral Geographer was cancelled. The company decided to use the accommodation on that ship to house employees in the period leading up to 5 August 2021 when they would then board the Coral Adventurer to undertake the voyage to Broome. 

[30]	Ms Clarke described Mr Kibria’s situation as ‘unique’. Because Mr Kibria chose not to return to Sydney, there was no need for him to isolate for the requisite period.  Effectively, it appears that Mr Kibria was not required to return to Darwin until much closer to 5 August 2021. Mr Kibria needed to allow 72 hours to undertake and receive his PCR test and to attend on a General Practitioner to get the required doctor’s clearance. However, the company was not funding Mr Kibria’s accommodation at this point as he was effectively still on rostered days off and was in Darwin at this point of his own choice. 

[31]	In evidence before the Commission were a series of emails between Mr Kibria and Ms Clarke during the period between 25 July to 27 July 2021.  In one of the emails, Mr Kibria explains to Ms Clarke that he has opted not to return to Sydney and asks if he is able to avail himself of the accommodation being provided on board the Coral Geographer. Ms Clarke confirms that once Mr Kibria receives his negative PCR test result, he could be accommodated on the Coral Geographer and that a tender will be organised to transport him to the Coral Geographer. 

[32]	There is a further exchange between the two in which there is a discussion about how long Mr Kibria may have to wait for his PCR rest results. The outcome was that Mr Kibria would extend his stay at the Argus Hotel until the morning of 28 July 2021 when he would attend the dock to be picked up by the tender.

[33]	Ms Clarke agreed that it was her expectation that Mr Kibria would isolate in the hotel following his PCR test and that this expectation was communicated to him through the Sail Safe manual. Ms Clarke was asked what she understood was meant by ‘isolate in the hotel’ and answered:

Ms Clarke: 	Well, I mean, not to isolate in the room as such, but just be very cautious. If you need to go out to go shopping just to, you know, be very cautious of gaining any sort of exposure to COVID at the time, particularly once they had the PCR result – PCR test, sorry. Again, avoid a COVID exposure area….to avoid the risk of exposure. 

[34]	On 26 July 2021, Mr Kibria went for a PCR test. He was told he needed a request form from Coral Expeditions. At 9.37 am, Mr Kibria wrote an email to Ms Clarke asking for the relevant form. At 10.05 am, Ms Clarke sent an email attaching the form to Mr Kibria. Mr Kibria replied to Ms Clarke, thanking her and saying that he would get the test done that day. Later, at 4.51 pm, Mr Kibria writes to Ms Clarke to say that he has had the test and is expecting the result on the afternoon of 27 July 2021. In that email, Mr Kibria considers the possibility of boarding the Coral Geographer on the evening of 27 July 2021 and concludes by saying, ‘Maybe, it would be right to schedule my boarding CG day after tomorrow the 28th (I could checkout in the morning and wait for the transfer to CG)’.

[35]	On 27 July 2021, Mr Kibria attended a consultation at Mediclinic Darwin for a COVID-19 assessment.  Following the medical appointment, Mr Kibria returned to his room at the Argus Hotel.

[36]	At some time prior to 8.30 pm, the hotel fire alarm was activated, and Mr Kibria was amongst the guests who were evacuated from the hotel.

[37]	Later in the evening on 27 July 2021, Mr Kibria ordered a room service dinner. 

[38]	At approximately 9.00 pm, Mr Kibria contacted his wife and daughters on Skype from his hotel room. At some time after the termination of the Skype call and after Mr Kibria had retired to bed, he suffered a heart attack and died.

[39]	The following morning, Mr Kibria was due to check out of the hotel to be picked up by the tender and taken to the Coral Geographer as arranged with Ms Clarke. 

[40]	At 9.00 am, 9.58 am and around 12.00 pm, housekeeping staff attempted to enter the room but found that the deadlock had been engaged from the inside. Mr Kibria was assumed to be sleeping. Shortly after 12.00 pm, hotel staff obtained a master key from the manager and accessed the room at 12.06 pm and 1.12 pm. On both occasions Mr Kibria was observed by hotel staff to be lying in bed and assumed to be sleeping.

[41]	At around 3.00 pm, the manger was advised and attended the room at 3.20 pm. Mr Kibria was found unresponsive in his bed. Emergency services were contacted at 3.24 pm.

[42]	On arrival at the scene, St John Paramedics found Mr Kibria lying on his back in his hotel bed with no signs of life. He was pronounced deceased at 3.40 pm on Wednesday, 28 July 2021. 

[43]	At 9.35 am on 28 July 2021, Ms Clarke wrote to Mr Kibria informing him that his results had been received and that he was approved to join the Coral Geographer at 11.00 am. Ms Clarke said that Xplorer (the tender) would collect him from Stokes Hill Wharf. Later, at 3.58 pm on Wednesday 28 July 2021, Ms Clarke sent an email to Mr Kibria asking him to call her urgently. 

[44]	A post-mortem report from the Royal Darwin Hospital Forensic Pathology Unit dated 21 September 2021 recorded the cause of Mr Kibria’s death to be: acute heart failure; ischaemic heart disease; coronary artery atherosclerosis and hypertensive heart disease. 

[45]	With the Appellants’ consent, the Respondent provided a chronology to assist me at the hearing of the matter.  I think it is helpful to provide that chronology at the outset of these reasons.  The chronology may assist a reader of these reasons. 

DATE	EVENT	
29.12.63	Date of birth Shoaib Kibria.
	
26.01.2021	Mr Kibria receives a written offer of employment with Coral Expeditions.	
01.02.2021	Mr Kibria signs the offer of employment.
	
20.02.2021 –
01.04.2021	Mr Kibria works first swing as the First Engineer on the Coral Adventurer.
	
02.04.2021 –
23.05.2021	Mr Kibria is rostered off.

23.05.2021	Mr Kibria departed Sydney travelling to Western Australia.
	
24.05.2021	Mr Kibria boards the Coral Adventurer in Broome to start his second swing.
	
24.06.2021	Mr Kibria disembarks the Coral Adventurer in Darwin, Northern Territory.
	
24.06.2021 –
04.08.2021	Mr Kibria is rostered off and is not due to commence his next swing on Coral Adventurer until 5 August 2021. Mr Kibria chooses to remain in Western Australia and the Northern Territory rather than travelling home and being required to quarantine.
	
23.07.2021	Mr Kibria returns to Darwin from Western Australia and books into the Argus Hotel at his own expense.
	
23.07.02021 –
27.07.2021	Mr Kibria remains rostered off and staying at the Argus Hotel.

25.07.2021–
27.07.2021	Email communication between Mr Kibria and Lisa Clarke, HR Manager regarding arrangements for Mr Kibria to be onboarded including having PCR test undertaken. Arrangement made for Mr Kibria and other crew to be temporarily accommodated on Coral Geographer (that was in Darwin) pending the arrival of Coral Adventurer.
	
27.07.2021	Mr Kibria undertakes PCR test and returns to his accommodation.
	
27.07.2021 –
28.07.2021	Sometime between 9:30 pm on 27.07.2021 and 9:00 am on
28.07.2021 Mr Kibria suffers a heart attack (whilst in bed) and dies.
	
28.07.2021	At 11.00 am Mr Kibria was to be on the wharf to be picked up by an
Explorer (small boat) and transported to the Coral Geographer.
	
25.08.2021	Application for compensation lodged with WorkCover Queensland.
	
21.10.2021	WorkCover Queensland reasons for decision – reject – on the basis that Mr Kibria’s employment not sufficiently connected with Queensland.
	
22.10.2021	Application for review.
	
02.02.2022	Respondent’s review decision – set aside rejection undecided and
provide directions.
	
22.04.2022	WorkCover reasons for decision confirming rejection of the claim on basis death is not work related.
	
21.07.2022	Application for review lodged with the Respondent.
	
03.11.2022	Respondent’s review unit confirm the rejection of the claim.
	
13.12.2022	Notice of Appeal.

	Submissions

[46]	The parties have made written and oral submissions and referred to cases they have identified as relevant to this matter.  I will address those cases and submissions here as they relate to each of the matters to be determined. 

Was Mr Kibria working at the time of his death? Did Mr Kibria’s death occur in the course of his employment?

Appellants’ submissions 

[47]	The Appellants cite Federated Municipal & Shire Council Employees Union of Australia v Shire of Albany (‘Federated Municipal’), where French J considered the concept of ‘time worked’. Several scenarios were discussed in the passage of the decision the Appellants drew my attention to. In one decision, Minister for Police v Western Australia Police Force Union of Workers,  time spent by a police officer required to remain at home, consume no alcohol and be prepared to conduct breathalyser tests when required was found to be time on duty for the purposes of the overtime provisions. In that matter, Neville J found that if a worker is instructed by a superior that they must do or not do certain things during a period of time, they must be on duty and that time is time worked.

[48]	In Federated Municipal, French J also considered a case where nursing aides indicated their availability to participate in an on-call system but were not required to respond if called. In that case it was found that this did not represent time worked. In that matter, Burt CJ opined that time is ‘time worked’ if the worker, whatever they may be doing, is under instructions given by the employer. Chief Justice Burt found that the worker may not be undertaking any physical activity, but that if they are required to be ‘in a certain place at and during a certain time so that he can act should a certain event happen’, where such a situation existed, ‘the time so spent is “time worked” whether the event initiating the physical activity happens or does not happen. He also serves who only stands and waits’.

[49]	The Appellants also direct my attention to Nazar v Hydro Electric Corporation (‘Nazar’), where the Full Court of the Supreme Court of Tasmania considered authorities addressing whether an injury had occurred ‘in the course of’ an employee’s employment. In that decision, reference was made by Blow CJ to Kavanagh v Commonwealth where Dixon CJ considered the contrasting expressions of ‘out of’ and ‘in the course of’ and said that ‘in the course of employment’ does not require a ‘causal relation with the employment and its incidents’, rather it describes ‘a condition which is satisfied if the accident happens while the workman is doing something in the exercise of his functions although it is more than adjunct to or an incident of his service’.  

[50]	In Nazar, Blow CJ found that in several cases, the High Court has ‘made it clear that an injury occurs “in the course of” a worker’s employment if it occurs when the worker is doing something that is incidental to the performance of his or her actual duties’. Chief Justice Blow then goes on to consider a case where a railway ganger was killed by a train during his lunch hour while crossing the railway line. In that decision, Dixon J said, ‘… For the service consists in more than the actual performance of the work which the workman is employed to do. It includes the doing of whatever is incident to the performance of the work’. His Honour went on to say:

Where the accident arises shortly before the beginning of actual work or shortly after its cessation, or in an interval when labour is suspended, and it occurs at or near the scene of operations, the question whether it arises in the course of the employment will depend on the nature and terms of the employment, on the circumstances on which work is done and on what, as a result, the workman is reasonably required, expected or authorized to do in order to carry out his actual duties. That the workman is liable to the control of the employer is of some importance. That he has not yet assumed the same relation to his employer’s premises and work as an ordinary member of the public is another matter of weight…

[51]	Further in Nazar, Blow CJ referred to the High Court’s decision Humphrey Earl Ltd v Speechley, which concerned a claim for workers’ compensation in respect of an injury sustained during a lunch break. That case concerned a worker who was employed to visit shops in the Sydney metropolitan area to service and repair machines and implements supplied by his employer. At lunch, the worker and a shop proprietor travelled some distance on a motorcycle and the worker was injured when they were returning at about 4.00 pm. The High Court unanimously held that the accident did not occur in the course of the worker’s employment.

[52]	The High Court’s decision in Hatzimanolis v ANI Corporation Ltd  (‘Hatzimanolis’) was also considered in Nazar. Hatzimanolis considered a workers’ compensation claim by a worker who was injured on his day off. In that case, the worker was on a day off on a Sunday. However, his supervisor organised a trip in the employer’s vehicles for anybody who wanted to go along. On return from the trip, one of the vehicles crashed and the worker was injured. The High Court unanimously held that the worker’s injury arose in the course of his employment. In Hatzimanolis, Mason CJ, Deane, Dawson and McHugh JJ explained the following in the principal judgment:

… an interval or interlude in an overall period of episode of work will ordinarily be seen as being part of the course of employment if the employer, expressly or impliedly, has induced or encouraged the employee to spend the interval or interlude at a particular place or in a particular way. Indeed, the modern cases show that, absent gross misconduct on the part of the employee, an injury occurring during such an interval or interlude will invariably result in a finding that the injury occurred in the course of employment. Accordingly, it should now be accepted that an interval or interlude within an overall period or episode of work occurs within the course of employment if, expressly or impliedly, the employer has induced or encouraged the employee to spend that interval or interlude at a particular place or in a particular way. Furthermore, an injury sustained in such an interval will be within the course of employment if it occurred at that place or while the employee was engaged in that activity unless the employee was guilty of gross misconduct taking him or her outside the course of employment. In determining whether the injury occurred in the course of employment, regard must always be had to the general nature, terms and circumstances of the employment 'and not merely to the circumstances of the particular occasion out of which the injury to the employee has arisen'.

[53]	In summarising these authorities in Nazar, Blow CJ states:
	
[14] 	From these authorities, it is clear that an injury will occur in the course of a worker’s employment if it occurs in one of the following situations:

•	When the worker is performing his or her actual duties.
•	When the worker is doing something that he or she is reasonably required, expected or authorised to do in order to carry out his or her actual duties.

•	When, during an interval between periods of work, the worker is doing something induced or encouraged by the employer.

•	When, during an interval between periods of work, the worker is at a place where the employer induced or encouraged him or her to be present, and is injured in circumstances that are the subject of the employer’s inducement or encouragement. 

[54]	In Comcare v PVYW, a majority of the High Court considered Hatzimanolis. I will not set out the entire section recited in the Appellants’ submissions. However, I note that at paragraphs [47] to [48], the majority in Comcare v PVYW said:

[47] 	First, the joint reasons in Hatzimanolis noted the concession made in that case by the employer that the employee would have been in the course of his employment whilst working at the mine and travelling to and from it, and whilst eating, sleeping and enjoying recreational activity at the camp. The basis for the concession was not gone into, but it may be accepted that these are all things which an employer might be taken to have induced, encouraged and expected an employee, who was to work remotely at a mine and live at a camp provided by the employer, to do. But the employer in Hatzimanolis also contended that it did not follow that the employee would be in the course of his employment during the whole of the time that he was in the Mt Newman area. The joint reasons accepted this contention and said that he would not necessarily be in the course of his employment whilst engaged in an activity during an interval in his overall period of work unless the employer had expressly or impliedly induced or encouraged him to engage in that activity. This statement confirms the necessary correspondence between activity and encouragement to undertake it, earlier referred to.

[48] 	Second, at an earlier point in the joint reasons it was said that it would be an "unacceptable extension" of the course of employment to hold that an employee was within the course of employment whenever the employer had authorised, encouraged or permitted the employee to spend time during an interval between periods of actual work at a particular place or in a particular way. To do so would be to extend liability for injuries occurring during intervals between periods of work which "could not fairly be regarded as within the course of employment." The example then provided was of an employee who was encouraged by his or her employer to see a doctor after working hours and was injured whilst visiting the doctor. In a literal sense the employee's injury would come within the formulation, but it would not ordinarily be considered that the injury was suffered in the course of employment.

[55]	With reference the above cases, the Appellants argue that Mr Kibria was induced or encouraged to stay at the Argus Hotel at the request of his employer and that he was ‘waiting’ or ‘serving’ between completing a PCR test and the employer receiving the result. 

	Respondent’s submissions

[56]	The Respondent submits that the medical information before the Commission entitles me to infer that Mr Kibria’s heart condition has been brought about by long-term lifestyle factors and that there is no evidence that Mr Kibria’s relatively short period of employment with Coral Expeditions has caused, or contributed to, his heart attack.

[57]	The Respondent further submits that as Mr Kibria had not been working since 24 June 2021, the Commission could not be satisfied on the balance of probabilities, that Mr Kibria’s injury arose out of, or in the course of, his employment with Coral Expeditions. 

[58]	The Respondent says that the while the factual circumstances of this case are not identical to those in Krleski v Simon Blackwood (Workers’ Compensation Regulator) (‘Krleski’), that case is sufficiently similar for the Commission to consider.

[59]	In Krleski, the injured worker suffered a serious and traumatic brain injury in mysterious circumstances. Mr Krleski was a fly-in fly-out worker employed by G&S Engineering at the Daunia Mine. Mr Krleski had returned to work following Easter on 10 April 2012 and worked his normal shifts at the mine on 11 and 12 April 2012. After work, Mr Krleski attended at a gym at the accommodation camp with a friend and co-worker.  His girlfriend who also worked at the mine attended his donga from 9.00 pm to 9.30 pm and when she left, Mr Krleski was in good health although reported that he was tired. 

[60]	Sometime between 9.30 pm on 12 April 2012 and approximately 4.30 am on 13 April 2012, Mr Krleski sustained a serious brain injury when his bodily system, for unknown reasons, began to break down. 

[61]	The Respondent notes that in Krleski, as in this matter, there was no medical evidence presented. In Krleski, Kaufman DP said:

[43] 	Although it was faintly contended for the Appellant that his personal injury falls within s 32(1) of the Act, this submission is unsustainable. Even were it the case that the injury arose out of, or in the course of, the employment, which I doubt but do not have to decide, there is no evidence upon which I could find that the employment was a contributing factor to the injury.  The Appellant was an apparently healthy young man who had been employed by the Employer for only a few months. Nothing untoward had occurred at work during the course of his employment. He seemed to be quite normal, albeit a little tired when Ms Gaffney left his donga at around 9.15pm on 12 April 2012. Something occurred during the night that resulted in his serious injury. There is no medical evidence before me to explain what happened. The Appellant was fine when Ms Gaffney left him, and he was apparently unconscious the following morning. 

[44] 	There is simply no evidence that would permit me to make a finding, or draw an inference, that the employment was a contributing factor, let alone a significant contributing factor, to the injury. The Appellant cannot bring himself within s 32(1) of the Act. 

[62]	The Respondent notes that that decision was appealed to the Industrial Court. President Martin dismissed that appeal, and the Respondent says that relevant to this present matter, his Honour confirmed:

[7] 	In the absence of any evidence connecting the appellant’s employment with the physical impairment he suffered on the evening of 12 April, the appellant could not rely on any part of the Workers’ Compensation and Rehabilitation Act 2003 (‘the Act’) in which the word “injury” was used in the sense given to it by s 32 of the Act.

[63]	With regard to the Appellants’ contention that Mr Kibria was in the course of employment as he was required to obtain a PCR test before boarding the Coral Geographer, the Respondent says the Commission could only find that Mr Kibria was in the course of his employment for the time he spent travelling to have the test undertaken, the time involved in having the test administered, and the time required to travel back to his accommodation. The Respondent says that when Mr Kibria arrived back at the hotel, he ceased to be ‘in the course of his employment’. 

Consideration: Mr Kibria was not working at the time of his death and his death did not occur during the course of his employment

[64]	It appears to be contended by the Appellants that as Mr Kibria was awaiting the results of the PCR test and was due to be accommodated on the Coral Geographer prior to commencing duty on the Coral Adventurer on 5 August 2021, he was ‘serving while he was waiting’. The Appellants point to the email of 25 July 2021 where Mr Kibria tells Ms Clarke that he is ‘willing to stay in Darwin’ which he says will ‘assist in the smooth running of the roster’. I do not accept that Mr Kibria was under instruction from the employer to stay in Darwin at this time. Mr Kibria chose to come to Darwin on this date.  While the smooth running of the roster is no doubt assisted by employees who are rostered on being available and ready to work when they are rostered, I do not accept that Mr Kibria was required to be in Darwin prior to a few days before 5 August 2021. As Mr Kibria was not under direction to be in Darwin on 27 July 2021, it cannot be said that he was ‘on-call’, ‘working’ or waiting for direction to work in the way considered by the authorities above at [47] and [48].

[65]	It is contended that Mr Kibria was not boarding the Coral Geographer to be a passenger but that he would be expected to work by assisting with routine tasks during the time he was onboard. However, I find that Ms Clarke’s evidence was that ‘there is always work to be done on board’ but that essentially, there was no expectation that Mr Kibria would undertake work if asked to do so. It seems uncontroversial that while Mr Kibria was going to avail himself of the accommodation available on the Coral Geographer for the final days of his rostered time off, he did not have to do so. In fact, Mr Kibria could have chosen to remain in Western Australia or in Darwin doing whatever he liked, until it was time to ensure that he had undertaken the pre-boarding Sail Safe procedure prior to 5 August 2021.

[66]	It is readily accepted by the Respondent that when Mr Kibria undertook the PCR test and when he attended the medical examination, these were work tasks required of him by the employer. In fact, it was conceded by the Respondent that had Mr Kibria suffered his heart attack on the way to or from the Argus Hotel to these appointments, or during the PCR test or doctor’s appointment, the injury may well have been compensable.  

[67]	However, I am unable to find that Mr Kibria was under the direction of his employer at any time other than when attending or undertaking those tests and appointments.  

[68]	Further, I do not accept that Ms Clarke requested Mr Kibria to extend his stay at the Argus Hotel. In her email to Mr Kibria of 26 July 2021 at 5:48 pm, Ms Clarke said, ‘To be on the safe side it may be better to extend your accommodation one more night and we can organise the transfer to occur during the morning [on] Wednesday.’ The nature of the email exchange appears to me to be more about Ms Clarke contemplating that Mr Kibria may not receive his PCR test result in time to be able to be picked up by the tender and taken to the Coral Geographer on the night of 27 July 2021 and that it may be better for him to stay the additional night at the Argus Hotel. In fact, this is the conclusion Mr Kibria reached and communicated in the email of 26 July 2021 at 6:04 pm where he says ‘Ok. Will prepare for Wednesday morning transfer to CG.’

[69]	During the time that Mr Kibria was awaiting his PCR result, he was not required to ‘isolate’ in the sense that he was unable to leave his room and was not under the direction of his employer.  He was essentially free to go about his rostered time off as he wished. Although I note Ms Clarke’s evidence which was that people tried to ‘be sensible’ and not expose themselves to a high risk of contracting COVID-19 once they had undertaken their PCR test. It also appears that had Mr Kibria not availed himself of the accommodation and meals available on the Coral Geographer, he would have been responsible for his own accommodation and meals at the Argus Hotel or anywhere else he chose to stay. Further, the Argus Hotel was not the hotel the company had a relationship with. It seems to me that if the company had directed Mr Kibria to be in Darwin at this time or to isolate following his PCR test on the dates in question, it would have been paying for his meals and accommodation and that this would most likely have been at the H Hotel.

[70]	The Appellants point out that Mr Kibria continued to be paid by his employer. This is not at issue. The employment contract makes it clear that Mr Kibria will be paid his wage in equal amounts on a fortnightly basis both during his rostered and non-rostered time.  That Mr Kibria was being paid does not persuade me that he was working by way of ‘serving his employer by standing and waiting’.

Was the Argus Hotel Mr Kibria’s place of employment?

Appellants’ submissions 

[71]	The Appellants appear to contend that the Argus Hotel was Mr Kibria’s place of employment as it was where he was staying while awaiting the outcome of his PCR results. 

Respondent’s submissions 

[72]	The Respondent refers me to Workcover Queensland v Dreadon. In that matter, the phrase ‘in connection with’ was considered by his Honour, Moynihan J:

To argue that the ‘place of employment’ relates to the physical and geographical boundaries of the area of land or property that is under the control of the employer is flawed.  The definition has two elements. The ‘place of employment’ is:

(a)	The premises, works, plant or place for the time being occupied by, or under the control or management of, the employer by whom a worker is employed; and

(b)	The premises, works, plant or place in, on, at or in connection with which the worker was working when the worker sustained the injury.

The second requirement of the definition indicates that not every piece of land or property occupied or under the control or management of the employee is necessarily every employee’s ‘place of employment’.  There must be a connection between the land or property and the work duties of the employee. Consequently, the definition must be applied to each case on its own facts…

[73]	The Respondent points out that Ms Clarke confirmed that Coral Expeditions does not have an office or other premises in Darwin and says that as a consequence, the only possible ‘place of employment’ in Darwin is one of Coral Expedition’s vessels as this would be the only area that would be under the control or management of Coral Expeditions and in connection with which Mr Kibria would work. 

[74]	With regard to s 34(1), the Respondent says that to rely on any of s 34(1)(a)-(c), the event must have happened on a day on which the worker has attended a place of employment as required under the terms of the worker’s employment. The Respondent says that on 27 July 2021, Mr Kibria did not attend a ‘place of employment’ although he did attend upon the Mediclinic. The Mediclinic was not under the control or management of Coral Expeditions, nor was it a premises occupied by Coral Expeditions and therefore it could not be said to be a ‘place of employment’. 

[75]	The Respondent also says that Mr Kibria’s temporary accommodation at the Argus Hotel could not be a ‘place of employment’ and that Mr Kibria also did not attend a place of employment prior to his death on 28 July 2021.  Further, the Respondent says that as in Krleski, even if I was satisfied that Mr Kibria had attended a place of employment on 27 July 2021, the Appellants cannot establish whether Mr Kibria died on 27 or 28 July 2021 and therefore, the Appellants have failed to establish that s 34(1) can apply. 

	Consideration: The Argus Hotel was not Mr Kibria’s ‘place of work’

[76]	The Respondent notes that section 35(4) of the WCR Act defines ‘home’. The Respondent says that according to that definition, Mr Kibria’s hotel room would be his temporary residence and his ‘home’ for the purposes of section 35 of the WCR Act. 

[77]	According to the definition in sch 6 of the WCR Act, a place of employment is defined as set out at [9].  I am unable to find that the Argus Hotel room Mr Kibria was staying in is a ‘place of employment’ per that definition.  The hotel room was not under the control or management of Mr Kibria’s employment. I do not accept Ms Clarke’s acknowledgement that Mr Kibria was extending his stay by an extra night to have somehow brought about circumstances where the employer was in control of the hotel room. Further, having decided that Mr Kibria was not working or required to undertake work while he was staying in the hotel on his rostered days off, I do not accept that the hotel had a connection with Mr Kibria’s work when he sustained the injury.

[78]	I do not accept that Mr Kibria’s ‘place of work’ was the Argus Hotel as contended by the Appellants. Rather, I find that the Argus Hotel was Mr Kibria’s temporary place of residence during days on which he was rostered off duty.

Did Mr Kibria’s death occur during an ‘ordinary recess’?

Appellants’ submissions 

[79]	The Appellants further  rely upon Sarkaria v Workers’ Compensation Regulator (‘Sarkaria’) where Martin J, sitting as President of the Industrial Court of Queensland, noted that the term ‘ordinary recess’ is not defined by the WCR Act, but has been considered in a number of cases.

[80]	Justice Martin went on to state that ‘in each case, the work to be done by the term “ordinary recess” bends to accommodate the particular fact situation’. His Honour noted the general rule of interpretation applied to statutes such as the WCR Act which are described as ‘beneficial’ legislation and said that the term ‘should be construed so as to give the fullest relief which the fair meaning of its language will allow’.

[81]	For completeness, I note that in Sarkaria, Martin J referred to the matter of Landers v Dawson where the High Court of Australia considered what was said regarding ‘an ordinary recess’ in Drummond v Drummond. In Drummond v Drummond, a worker who was employed as a farm labourer in a farming business was employed to work on weekdays and on Saturdays. On Saturdays he worked on the farm until noon and then ceased work before returning later in the evening to perform further duties. On the afternoon he was injured, the worker went to watch a football match in the afternoon and then drove to the farm to complete his evening duties. His car ran off the road and he sustained incapacitating injuries. The submission before the court was that his injuries occurred on a day on which he had attended at his place of employment and that he was temporarily absent from his place of employment during an ‘ordinary recess’. In that matter, the Court determined that the period between noon and the evening on the Saturday when the worker was injured was not an ordinary recess. The Full Court of the Supreme Court of Victoria held: 

… The word ‘recess’ in its normally understood acceptation refers to a relatively brief interruption in an otherwise continuous period of work. It is normally associated with rest, refreshment or relaxation, such as ordinarily occurs at regular times, such as lunchtime, morning or afternoon tea, or ‘smoko’. It is a period of rest incidental to a period of labour in its general acceptation. The recess is something in the nature of an interval between two or more periods of work in the normal day. It would not be an ordinary or natural use of language to speak of the period between noon on Saturday and Saturday evening, a period of some five to six hours, as a “recess”.  It is much more than a brief interruption of an otherwise continuous period of work. It is really a cessation of one period of work and the performance of his evening duties.

[82]	The above passage was cited with approval by Kitto, Taylor, Menzies and Owen JJ in Landers v Dawson. Their Honours went on to say with regard to the facts before them in Landers v Dawson:

The appellant was not working a continuous twenty-four hour day interrupted by relatively short breaks for refreshment or relaxation. During the substantial intervals of the day and night when he was not required to work, the time was entirely his own.  He was off duty and could use his off-duty periods for any purpose that he thought fit…
Respondent’s submissions 

[83]	The Respondent cites Tooth and Co Ltd T/AS Mona Vale Hotel v Injac. That matter concerned Mr Injac, who worked as a cook in the kitchen of the Mona Vale Hotel. Mr Injac’s working hours were 9.00 am to 3.00 pm and then 5.00 pm to 9.00 pm each working day. Mr Injac was injured when he was hit by a car during the period between 3.00 pm and 5.00 pm whilst away from the workplace on his own business. The majority judgment in that matter held that the evidence established that Mr Injac worked not for a continuous period each day for but two distinct periods of work or shifts and that the period of two hours where he was free to do as he pleased did not come within the phrase ‘ordinary recess’ for the purposes of the Workers Compensation Act 1987 (NSW).  Relevantly, in that decision, Mahoney JA noted:

… the worker worked not for a continuous period each day but for two distinct shifts. The term “recess” as ordinarily used is not, in my opinion, appropriate to describe the period of time that exists between the end of one shift and the beginning of the next shift worked by the worker. Ordinarily, “recess” is used to denote a break in the actual execution of work during a period of time when the worker is in the course of his employment. It is wrong to stereotype working conditions or to construe terms in legislation of this kind by reference only to more conventional working arrangements.  As Powell JA suggested during argument, it must be borne in mind that the language used in the legislation is intended to operate by reference both to usual and to less usual classes of employment.  And, it may be, in more recent times the conventional employment for eight continuous hours each day (or less) is increasingly being replaced by more flexible work arrangements.

But taking these matters into account, I do not think that a period of two hours between “shifts” during which the worker was free to do what he wished was within the phrase “ordinary recess”.  “Recess”, I think, means something else.

[84]	The Respondent says that to suggest that Mr Kibria was on an ‘ordinary recess’ when he had not worked since 24 June 2021 ‘is an absurd proposition which attempts to stretch the meaning of the phrase “ordinary recess” beyond any logical, sensible and legally permissible construction.’

Consideration: Mr Kibria was not on an ‘ordinary recess’ at the time of his death

[85]	In considering the term ‘ordinary recess’ in Sarkaria, Martin J said that ‘in each case, the work to be done by the term “ordinary recess” bends to accommodate the particular fact situation’. The Appellants point out that the WCR Act is beneficial legislation and that it should be construed to give the fullest relief which the fair meaning of its language will allow.

[86]	In considering Martin J’s observation set out above and the cases cited by the parties, I find that any ‘recess’ in Mr Kibria’s circumstances, even if one was found to exist, falls well beyond ‘ordinary’.

[87]	For reasons discussed above, I do not accept that Mr Kibria was working while staying at the Argus Hotel awaiting the outcome of his PCR test so that he could check out of the hotel and move to the Coral Geographer for the remainder of his rostered days off. It follows that I do not accept the Appellants’ submission that when Mr Kibria was sleeping, by reason of the nature of his employment, he was on an ‘ordinary recess’.

[88]	While I recognise that the legislation is to be construed beneficially, to conclude that the Argus Hotel was a ‘place of work’ or that Mr Kibria was on an ‘ordinary recess’ would require more than giving the fullest relief that the fair meaning of the language will allow. 

[89]	At the time of his death, Mr Kibria had been on rostered time off for several weeks. Mr Kibria had chosen, albeit in unusual and difficult circumstances, not to return to Parramatta for his rostered time off due to the requirement to quarantine.  I am satisfied that he was not directed to stay in Western Australia or the Northern Territory by his employer.  Mr Kibria was able to do whatever he wanted to do during that time and was under no requirement to be ‘on call’ or undertake work duties. Mr Kibria returned to Darwin at a time of his choosing, staying in accommodation organised and paid for by him, arriving several days earlier than he was required to return in order to comply with the Sail Safe requirement to undertake PCR testing and attend a medical appointment prior to boarding the Coral Adventurer on 5 August 2021. 

[90]	While Mr Kibria was a maritime worker and evidence was presented to the Commission regarding the nature of rosters and ‘swings’ in the industry, it is not possible to conclude that an injury sustained by Mr Kibria during his rostered time off could be said to have occurred in the course of employment.

[91]	Mr Kibria was not working, the Argus Hotel was not a place of employment, and it follows that the time Mr Kibria was asleep overnight at the hotel, was not an ‘ordinary recess’.

Was Mr Kibria on a journey to his employment at the time of his death?

Appellants’ submissions 

[92]	The Appellants refer to Faelmann v Workers’ Compensation Regulator (‘Faelmann’), where Kaufman DP considered whether a worker was on a journey between his place of employment and his home when he was fatally injured. 

[93]	In that matter, the focus was on whether there had been a substantial interruption of the journey or deviation from the normal route.  Deputy President Kaufman determined that ‘the only issue to be decided is whether the interruption of the deceased journey was substantial and, if so, whether the interruption arose because of circumstances beyond the deceased’s control’. Deputy President Kaufman considered that the question must be assessed by having regard to the particular facts and circumstances of the case in issue.

[94]	In Faelmann, it was determined that the worker was injured during a journey as the interruption to his journey was due primarily to the actions of his employer, which were beyond the deceased’s control.

[95]	The Appellants’ case is that Mr Kibria was on a journey to his premises in Sydney at the time of his death and that his journey changed when he was informed that his employer would provide him with accommodation on the Coral Geographer.  The Appellants say that there was a delay of 2 days in Mr Kibria’s journey while he awaited the COVID-19 PCR test result. The Appellants say that the reason for the delay in Mr Kibria’s journey was connected with his employment and that the delay, interruption or deviation arose because of circumstances beyond Mr Kibria’s control. 

Respondent’s submissions

[96]	The Respondent says that Mr Kibria last undertook work at a ‘place of employment’ on 24 June 2021 and that at that time he would have been on a journey from his place of employment, the Coral Adventurer, to his temporary place of residence.  The Respondent says that upon arrival at his temporary place of residence on either 24 or 25 June 2021, the journey would have ended.  

[97]	The Respondent further says that Mr Kibria was to commence a short journey from his temporary place of residence at the Argus Hotel on 28 July 2021 to the Coral Geographer, but that journey was yet to commence at the time of his death.

Consideration: Mr Kibria was not on a journey to his employment at the time of his death

[98]	There are several difficulties with the submission that Mr Kibria was on a journey at the time of his death. 

[99]	Mr Kibria was in bed at his temporary place of residence at the time of his death. Mr Kibria was not on a journey to his employment as he was in bed sleeping. In order to determine that Mr Kibria was on a journey to his employment at the time of his death, I would need to form a view that Mr Kibria’s journey to his employment commenced at some time after he disembarked to commence his rostered time off and that the journey continued for several weeks, with a delay in the journey occurring upon his checking in at the Argus Hotel, undergoing pre-boarding procedures and making his way to the Coral Geographer, either to undertake some form of unknown duties which he may be requested to perform, but not required to undertake, or for a further delay before once more commencing rostered time on the Coral Adventurer on 5 August 2021.  

[100]	I accept that whether Mr Kibria was on a journey for the purposes of the legislation needs to be assessed by reference to the circumstances of the case.  However, even considering Mr Kibria’s employment conditions and the circumstances which led him to stay at the Argus Hotel on the night of his death, I am unable to characterise his circumstances as a journey for the purposes of the WCR Act.

[101]	The Appellants offer an alternative suggestion that Mr Kibria was in Darwin for the purposes of travelling to Sydney. I do not accept that. Mr Kibria was in Darwin on 24 July 2021 and was due to commence his rostered time on the Coral Adventurer on 5 August 2021. Had Mr Kibria travelled to Sydney, it is entirely unlikely that he would have been able to arrive in Sydney and return to Darwin in time to comply with the requirements to board the ship for work on 5 August 2021. I find it even more unlikely that Mr Kibria would spend approximately one month of his rostered off time in Western Australia, only to return to Sydney for a period of only a couple of days before needing to return to Darwin. It remains unclear to me why Mr Kibria would write an email stating that he was ready to travel to Sydney at a time when to do so would mean that there was a high likelihood he could not be ready for his next swing on the roster. I do not accept that Ms Clarke’s confirmation to Mr Kibria that he could be accommodated at company expense on the Coral Geographer is what caused Mr Kibria to remain in Darwin.  I find that Mr Kibria was in Darwin for the purpose of spending his final days of time off the roster in the location where he would be required to be to undertake PCR testing and the other Sail Safe requirements.

[102]	I agree with the Respondent’s assessment that Mr Kibria undertook a ‘journey’ when he  disembarked the Coral Adventurer on 24 June 2021 and travelled to his temporary accommodation in Western Australia.  From there, he was not working and was able to do as he pleased. So much is confirmed by Ms Clarke’s request that Mr Kibria provide her with some information about when he had left Western Australia. Mr Kibria was not required to inform the company where he was or what he was doing.  It appears he was only required to arrive back in time to undergo and receive a PCR test. Mr Kibria was intending to undertake a journey from his temporary accommodation at the Argus Hotel to the Coral Geographer on 28 July 2021 or when he was informed that his negative PCR result had been received.  However, due to his death the email informing him of the time the tender would arrive to pick him up remained unread and the journey never occurred.

Conclusion

[103]	There is no doubt that Mr Kibria’s death is tragic and I have sympathy for his family. He leaves behind a wife and children and it is not lost on me that he was in Skype contact with them before he went to bed and died on either 27 or 28 July 2021. I imagine it was difficult for Mr Kibria to make the decision to remain in Western Australia and the Northern Territory in order to avoid lengthy periods of isolation or quarantine or the possibility of a lockdown and an inability to return to work. However, I am unable to find that this claim is one for acceptance. 

[104]	I also acknowledge Ms Clarke who gave evidence at the hearing.  It was clearly upsetting for Ms Clarke to revisit the circumstances surrounding Mr Kibria’s death and I note that her evidence was clear and forthright. I also extend my sympathy to Mr Kibria’s work colleagues.

Section 32

[105]	The medical evidence was entirely documentary and an expert witness was not called. The evidence does not enable the Commission to conclude that Mr Kibria’s work was a significant contributing factor to his injury. For the reasons given above, I also do not accept that Mr Kibria’s death occurred in the course of employment and it follows that his injury falls outside of s 32 of the WCR Act.

Section 34

[106]	Section 34(2) establishes that if Mr Kibria’s injury occurred during a temporary absence from the place of employment during an ordinary recess on a day when he had attended his place of employment, work need not have been a contributing factor to his injury. For the reasons provided above, I find that the Argus Hotel was not Mr Kibria’s ‘place of employment’ in accordance with sch 6 of the WCR Act. I have considered the alternative argument that Mr Kibria was under the instruction of his employer to attend a clinic to undergo a PCR test and that he also attended the Mediclinic on 27 July 2021. However, it is clear that the Mediclinic was not Mr Kibria’s place of employment. If I am wrong on that, there is also the problem that it is not able to be established on the balance of probabilities that Mr Kibria did in fact die on 27 July 2021. Therefore, Mr Kibria did ‘not attend a place of employment as required under the terms of the worker’s employment on the day of his death’. Mr Kibria had been absent from his place of employment on rostered time off for several weeks prior to his death. It therefore follows that he cannot have been on an ‘ordinary recess’ per s 31(1)(c) at the time of his death.

Section 35 

[107]	For the reasons set out above, I am satisfied that Mr Kibria was not on a journey between his home and place of employment per s 35(1). Mr Kibria was temporarily residing at the Argus Hotel at the time of his death. It was therefore his ‘home’ for the purposes of s 35(4). As Mr Kibria was in bed at ‘home’, he was therefore not on a journey to his place of employment when he suffered the heart attack. 

[108]	I have taken into account the submissions and cases cited by the Appellants regarding the possible application of s 36(2)(b) and s 36(3).  If I were to accept, and for the reasons given above, I do not, that Mr Kibria was indeed on one long journey at the time of his death, it may be relevant to consider whether Mr Kibria was delayed or interrupted by matters outside of his control. The argument being that Mr Kibria was delayed in his journey by the need to wait for a PCR test and that this was a circumstance outside of his control given the company’s Sail Safe policy and the surrounding circumstances regarding the COVID-19 pandemic.  However, for the reasons given above, Mr Kibria was not on a journey at the time of his death for the purposes of s 35 and therefore, I have not applied s 36.

[109]	For the foregoing reasons, the appeal is dismissed. 

	Orders

[110]	I make the following orders:

2.	The Appeal is dismissed.

2. 	Pursuant to r 41(1) of the Industrial Relations (Tribunals) Rules 2011: 
	
(a) 	Costs are to be in an amount agreed,  or if the parties fail to reach agreement by 26 October 2023, the parties are to exchange and file written submissions on the costs of the hearing (of no more than two (2) pages, 12-point font size, line and a-half spacing with numbered paragraphs and pages) by 4.00 pm on 9 November 2023; and 

(b) 	 in the absence of any application to make oral submissions in respect of costs, the question of costs will be decided on any written submissions filed without further oral hearing.