No compo for ‘white knight’ trucker – AAT dismisses worker’s claim for injuries suffered in service station brawl

Date: November 29, 2016


O’Loughlin v Linfox Australia Pty Ltd [2016] AATA 606

Key Points


Mr O’Loughlin was employed by Linfox Australia as a tanker driver.  On 7 September 2010, he delivered a load of fuel to a service station in Pascoe Vale.  As he was discharging the fuel a woman drove into the service station, stopping at the bowsers and started beeping her horn.  A mechanic then came outside and threw two heavy objects at the car and started to beat his fists on the window and windscreen.

Mr O’Loughlin’s evidence was that he was concerned for the woman in the car, so he shouted at the man to calm down.  The situation escalated, with the man punching Mr O’Loughlin on the left cheek and kicking him in the left knee.

Mr O’Loughlin submitted a claim for workers’ compensation in respect of injuries to his face and left knee as a result of the altercation.  The employer initially accepted liability in respect to the claim, however two years later revoked the acceptance and denied the claim on the basis that, pursuant to the PVYW decision, the injuries did not occur in the course of employment because Linfox had not “induced or encouraged” Mr O’Loughlin to get involved in altercations.

The AAT initially affirmed Linfox’s decision based on that reasoning.  However, after a Federal Court appeal and remission back to the Tribunal, the claim was rejected on the basis of the “voluntary and unreasonable assumption of risk” provisions of the SRC Act.

The Law

Section 6 of the SRC Act provides an extension to the usual definition of injury together with and exclusion to the extension.  It states that:

if the employee sustained the injury because he or she voluntarily and unreasonably submitted to an abnormal risk of injury. [emphasis added]

The Decision

Prior to rejecting the claim based on the “voluntary and unreasonable assumption of risk” exclusion the Tribunal disposed of a number of preliminary issues as follows:

The final consideration for the Tribunal was whether the exclusionary provision in section 6(3) applied.  Section 6(3) can only apply in the circumstances listed in section 6(1), but is expressly stated not to limit the circumstances upon which a worker might otherwise be entitled to compensation.

Mr O’Loughlin argued that section 6(3) was not applicable because he was otherwise entitled to compensation.  However, Linfox successfully argued that Mr O’Loughlin qualified under section 6(1)(b), as he was at a place referred to in that subsection.  The Tribunal commented that it would be inconsistent with the scheme if an employee was able to choose not to rely on section 6 in order to avoid the exclusion provided by section 6(3).

Noting Linfox’s comprehensive evidence that it had provided instructions to drivers not to engage in altercations of any kind with members of the public and that Mr O’Loughlin had undoubtedly provoked the assailant, the Tribunal found that Mr O’Loughlin had put himself at abnormal risk of injury and that the exclusion was therefore enlivened.

Lessons Learnt

The section is, as a general rule, under utilised, which is in some part attributable to the fact that it can only apply in relation to the specific examples listed within section 6(1).  While the decision is under appeal, it demonstrates that when an employer has strong policies with respect to conduct, claims can be sustainably rejected where there is a substantial breach of those policies.


Chris Murphy                                                                   Claire Tota
Partner                                                                                Associate
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