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26.1.1 Serious and wilful misconduct
For this provision to apply, the misconduct of the member must:
- be serious, and
- be wilful, and
- cause the injury.
In assessing whether misconduct is 'serious', consideration must be given to the level of risk involved, the potential seriousness of the consequences and the deliberate intention of the member to engage in the conduct.
Note: It is the misconduct which must be 'serious', not the injury which has resulted (Comcare v Calipari (2001)).
Misconduct which arises from negligence, carelessness or inattentiveness, or from a failure to appreciate the level of risk involved, could rarely be described as 'wilful'.