Section 14(3) of the SRCA provides:
14(3) Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment.
Note that S4(13) deems a client to have engaged in serious and wilful misconduct if he or she is under the influence of alcohol or a drug (other than a prescribed drug used in accordance with the prescription). This issue is separately discussed in the commentary on 'Under the influence of alcohol or a drug'.
The exclusion of liability under S14(3) does not apply if:
For this provision to apply, the misconduct of the member must:
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'.
1.Adams and Australian Postal Corporation (1993): the Tribunal held that, in the circumstances, eavesdropping was not serious and wilful misconduct. The Tribunal held that, at least in cases relating to physical injuries, the conduct must be such as to give rise to an immediate risk of injury. It must be a deliberate act, and not merely a thoughtless act done on the spur of the moment and it must be accompanied by an appreciation of the risk involved.
2.Vines and Comcare (1995): the employee was injured while playing soccer in the change room prior to bundying off from work. The employer had prohibited such activities by notices on several occasions, but not within the previous six to twelve months, and no disciplinary action had ever been taken apart from confiscating several soccer balls. In all the circumstances, the Tribunal found that the employer's attitude was 'equivalent to tacit approval' and that the employee was not precluded from compensation by S1 — 4(3).
For an injury to be 'caused' by serious and wilful misconduct, there must be more than an incidental or minor causal contribution. The misconduct must be the sole or principal cause of the injury.
1.A member rode an unregistered motorcycle without a licence. She was struck by a car reversing from a driveway. Serious and wilful misconduct is able to be proven in this case, but as the injury was not caused by that misconduct, rather by the action of the car reversing into the motorcycle, compensation would be payable.
Links
[1] https://clik.dva.gov.au/user/login?destination=node/20091%23comment-form
[2] https://clik.dva.gov.au/user/login?destination=node/20128%23comment-form
[3] https://clik.dva.gov.au/user/login?destination=node/20385%23comment-form
[4] https://clik.dva.gov.au/user/login?destination=node/20255%23comment-form
[5] https://clik.dva.gov.au/user/login?destination=node/20172%23comment-form