Compensation for Injured Worker: Jockey Successful in Claim 9 Years post-injury

The case of Simon Blackwood (Workers’ Compensation Regulator) v Ian Andrew Toward looks at an injured worker and old injuries.

Facts 

Mr Toward was a jockey who was injured on 21 August 2004. On that date, the horse he was riding flipped over the barrier prior to the start of a race. Mr Toward was pinned and subsequently injured.

Mr Toward was described by the Court to have a quality that was “completely admirable – stoicism in the face of pain”.

Notwithstanding the injury, Mr Toward rode in other races that day, and continued to ride in the week after.

However, Mr Toward’s pain continued, and on 1 February 2005, Mr Toward was examined by a general practitioner (Mr Simonds), who referred Mr Toward to an orthopaedic surgeon (Mr Pozzi).

However, no application for compensation was commenced until July 2013, when Mr Toward again consulted Mr Simonds and Mr Pozzi. In this regard:

1. 1. A Workers’ Compensation Medical Certificate was issued by Dr Simonds on 16 July 2013 with the diagnosis of severe arthritis in the left hip. The date of injury was noted as 21 August 2004, and the cause of injury as “Horse bucking and falling within a stall pinning Ian under. Numerous other injuries as jockey.”
   2. On 17 July 2013 Mr Toward commenced an application for compensation with WorkCover Queensland, with the injury claimed as osteoarthritis of the left hip.

At first instance, that application was rejected on the basis that there was insufficient medical evidence to support the claim. On review the decision was upheld.

Subsequently the matter was appealed to the Queensland Industrial Relations Commission, where the Worker’s Compensation Regulator (for the first time) raised the issue of whether the application had been made within the relevant time limit of 6 months under the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (“the Act”).

The Commission found that the application had been made in the time prescribed.

The matter was subsequently heard before the Industrial Court of Queensland.

Issues in Dispute

There were two main issues considered by the Court, which were:

1. 1. For the purposes of the Act’s time limit, how should the expression ‘assessed by a doctor’ be interpreted?
   2. Whether Mr Toward was assessed as having an injury? And if so, when?

‘Injury Assessed by a doctor’

Relevant to Mr Toward’s circumstances is section 131 of the Act, which states that:

“An application for compensation is valid and enforceable only if the application is lodged by the claimant within 6 months after the entitlement to compensation arises”.

An entitlement to compensation is defined in section 141 of the Act, which states that:

“(1) The entitlement to compensation for an injury arises on the day the worker is assessed by—

(a) a doctor; or

(b) if the injury is a minor injury—a nurse practitioner acting in accordance with the workers’ compensation certificate protocol; or

(c) if the injury is an oral injury and the worker attends a dentist—the dentist.

(2) However, any entitlement to weekly payment of compensation starts on—

(a) if a doctor, nurse practitioner or dentist assesses the injury as resulting in total or partial incapacity for work on the day the worker stops work because of the injury—the day after the worker stops work because of the injury; or

(b) if a doctor, nurse practitioner or dentist assesses the injury as resulting in total or partial incapacity for work on a day later than the day the worker stops work because of the injury— the day the doctor, nurse practitioner or dentist assesses the injury.”

In considering whether Mr Toward’s application was made within the relevant time limit, the Court considered the previous decision of WorkCover Queensland v Downey (decided in the Queensland Industrial Relations Commission), Hall P said (of the predecessor of section 141 of the Act) that:

“…it seems to me that the expression ‘assessed by a doctor’… must be taken to mean ‘assessed by a doctor as resulting in total or partial incapacity for work’.”

The Court took the view that Hall P erred in his interpretation of the expression ‘assessed by a doctor’ of section 141(1) of the Act, as Hall P’s interpretation would exclude other types of compensable injury (for example, death).

The Court held that ‘assessed by a doctor’ pursuant to section 141(1) of the Act should be interpreted as “assessed by a doctor as suffering a personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to [an injury that may be compensated under the Act]”.

Was Mr Toward assessed as an injured worker? And if so, when?

Fortunately for Mr Toward, the evidence presented showed that there was no specific connection made by the medical practitioners between the “horse flipping over and the condition of Mr Toward at the time he was first seen” in 2005.

In this regard, the Court held that there must be some evaluation, conclusion or expression of opinion that “the injury arose out of the employment.”

The Court took the view that Mr Toward’s doctors only directed themselves to whether the injury arose out of the employment in 2013.

The evidence revealed that prior to 2013, each of the doctors were concerned with the treatment of Mr Toward, but had not directed their minds to the question of which physical injury arose out of employment.

Therefore, the Court held that Mr Toward’s claim was made within the relevant time limit under the Act.

Comments 

In our view, this decision is significant, as it provide new guidance on the definition of ‘assessed by a doctor’.

This decision may potentially give employees an opportunity to commence a claim pursuant to the Act in relation to an old injury, if no medical advice has previously been provided which considered whether the old injury arose out of employment.

This decision may “extend the time” for an employee’s statutory benefits claim.

For more information 

For an injured worker, read about our Brisbane Personal Injury Lawyers, our No Win No Fee PI services, our free initial PI consult or ask a personal injury question directly through our blog.

What happens when employees have too much fun at a Work Christmas Party?

Recently a friend told me a story and to be frank, I was shocked when I first heard it. She had explained to me that she was at Friday night work drinks and things had gotten out of hand. One of her co-workers had been severely injured. I will spare you the details, but my legal brain went into overdrive and all I could really think of the end of year work christmas party and the following question:

Is her boss liable for her co-worker’s injury, even though it wasn’t during work hours?

Let me set out a scenario for you. You are at a work Christmas Party. You are so excited that it is the end of the year, and your employer and co-workers are keen to let off some steam. After all, you’ve earned it, right? The Christmas Party is held at the local Tavern. You all have a meal together and your employer even allows alcoholic drinks to be served consisting of beer, wines and spirits.

It reaches 12:30am and the staff at the Tavern are advising you and your co-workers that they are closing. However, you don’t necessarily want the party to stop so your boss offers everyone to come back to his house. Luckily, his house is big enough to host all his employees and even backs onto a golf course.

It reaches 3:00am and one of your co-workers said they had never seen a kangaroo. You think, you live in Australia, how is that possible. Your employer’s wife (who is also probably thinking the same thing) was part of this conversation. Someone suggested that they should hop on a golf cart owned by your boss to see if they can find some kangaroos. You know that the golf cart can really only hold two people, however, it’s late and you really don’t care at this point, three of your other co-workers jump on including your boss.

A few minutes later you fall off the golf cart. You feel a tremendous amount of pain in your head and think this can’t be good. You find out later that you have sustained a “traumatic brain injury”. What do you do now? Are you able to sue your employer for injuries sustained after the work christmas party?

Hattenfels v Richards Panel Pty Ltd

This was the exact set of circumstances in Hattenfels v Richards Panel Pty Ltd (2022) AWR 20-772; [2022] NSWPIC 213.

The Court had to consider whether the injury, which occured at a christmas party, arose in the course of employment pursuant to s 4 of the Workers Compensation Act 1987?

The Judge held that the injury sustained by the employee was a workplace injury. In reaching this conclusion the Judge held at paragraph [100]:

I accept that the continuation of the social activities at the respondents (employers) premises was seamless. To my mind there appears to be no interruption or deviation from the intended beneficial purpose to the employer of allowing a Christmas celebration to facilitate a harmonious working group.

In making this conclusion, the Judge considered the following factors:

1. 1. The social event was exclusively held for his employees;
   2. After the events at the Tavern had finished, the Employer organised a Taxi from the Tavern to their premises;
   3. After all the employees arrived at the employer’s residence, further drinks were provided to the employees and music was played (encouraging them to be there); and
   4. No one was asked to leave the premises.

Lessons

There can be a lot of lessons learned in this case. Your obligations as an employer will continue even outside of work hours. If it can be established that there is a sufficient nexus between the social event and the employment, your liability as an employer towards the health and safety of your employees will continue and you may be liable for any personal injury sustained by your employee.

It is important to establish a staff code of conduct and have clear guidelines between social events and work. These factors will assist in mitigating an employer’s liability towards an employees injury outside of work hours.

Injured in a work related activity?

If you are an employer who finds themselves in this situation, do not hesitate to contact our personal injury team on 07 3252 0011. Furthermore, if you need advice on managing workplace risks and liabilities, we are able to assist.

This article was written by Francisca Mayer.

Helpful Links

https://corneyandlind.com.au/fall-injury-claim/

https://corneyandlind.com.au/compensation/personal-injury-case-study-allen-v-odonnell/

https://corneyandlind.com.au/resource-centre/negligence_no-win-no-fee-brisbane-lawyers/

https://corneyandlind.com.au/compensation/falls-in-the-workplace/

When Parties Don’t Agree: Injury & Medico-legal Examinations

Case Note: Slaughter v Harvey [2021] QDC 156

Facts

Dr John Slaughter was a treating psychiatrist for several years. The defendant, Mr Dean Harvey, who is the plaintiff in the substantive application, attended upon Dr Slaughter between 1984 and 2018 for psychiatric advice and treatment.

Harvey alleges that Dr Slaughter advised him that he was a sufferer of a depression and it would require lifelong treatment with a significant amount of prescription drugs. In or about 2016, Harvey stopped taking his prescription medication however, he continued to see Dr Slaughter for appointments until 2018.

Harvey alleges that since ceasing his medication he has recovered his “exuberant enjoyment of life” and attended upon other psychiatrists for a second opinion whereby he was diagnosed as, suffering no psychiatric illness. Further he was diagnosed as to likely never having suffered such an illness. It is alleged that Harvey, subject to the prescribed medication, experienced numerous serious side effects which caused him loss and personal injury.

In 2019, Harvey sought leave of the Court to commence his claim in the District Court against Dr Slaughter for damages of personal injury caused by his alleged battery, negligence, misleading and deceptive conduct as well as breach of contract over his treatment period.

Leave was granted and proceedings commenced in the District Court however, they were stayed pending completion of the pre-Court processes required under Chapter 2, Part 1 of the Personal Injuries Proceedings Act 2002 (Qld) (‘PIPA’). At the time of judgement, those processes were still on foot.

In this proceeding, which was commenced by an originating application, Dr Slaughter sought:-

1. 1. The PIPA claim be permanently stayed unless Harvey underwent an independent medico-legal examination by Dr John Chalk;
   2. In alternative, the PIPA claim be permanently stayed unless on or before 31 August 2021 Harvey underwent a medico-legal examination by a psychiatrist, to be selected by Dr Slaughter from Dr Jill Reddan, Dr Jon Steinberg or Dr John Chalk;
   3. The medico-legal exam was to occur on such terms as the psychiatrist directed; and
   4. Copy of the report from that examination be provided to Dr Slaughter’s legal representatives.

Essentially, this application was made under section 35 of PIPA whereby a party’s failure to comply with a duty imposed under section 25 of PIPA, the court may make an order that the parties must take specific action to remedy this failure, and the Court may make ancillary or consequential orders.

Dr Slaughter contended that, in accordance with section 25 of PIPA, he had requested Harvey undergo a medical examination by a doctor, selected by Harvey, from a panel he provided. Harvey had refused to do so and sought the imposition of conditions on the examination which were not acceptable to any member of the panel provided by Dr Slaughter.

The law

Section 25 (under Division 2) deals with the “examination of claimants by medical experts in absence of agreement between parties”. It states:-

(1) This section applies if a respondent wants to obtain an expert report about all or any of the following, but fails to obtain the claimant’s agreement—

(a) the cause or probable cause of the incident alleged to have given rise to the personal injury to which the claim relates and whether, in the expert’s opinion, 1 or more persons (who may be named), are responsible for, or contributed to, the incident;

(b) the cause or probable cause of the personal injury to which the claim relates and whether, in the expert’s opinion, 1 or more persons (who may be named) are responsible for, or contributed to, the injury;

(c) the claimant’s medical condition or prospects of rehabilitation;

(d) the claimant’s cognitive, functional or vocational capacity.

(2) The claimant must comply with a request by the respondent to undergo, at the respondent’s expense either or both of the following—

(a) a medical examination by a doctor to be selected by the claimant from a panel of at least 3 doctors with appropriate qualifications and experience in the relevant field nominated by the respondent in the request;

(b) an assessment of cognitive, functional or vocational capacity by an expert to be selected by the claimant from a panel of at least 3 experts with appropriate qualifications and experience in the relevant field nominated by the respondent in the request.

(c) However, a claimant is not obliged to undergo an examination or assessment under this section if it is unreasonable or unnecessarily repetitious.

(d) If 3 doctors or experts with appropriate qualifications and experience in the relevant field are not available for inclusion on a panel under subsection (2), the number on the panel may be reduced to 2.

Section 35 provides the Court with the power to enforce parties to comply with section 25. It states:-

(1) If a party fails to comply with a duty imposed under division 1 or 2, the court may, on the application of another party to whom the duty is owed, order the first party to take specified action to remedy the default within a time specified by the court.

(2) The court may make consequential or ancillary orders, including orders as to costs.

Issues before the Court

Harvey opposed Dr Slaughter’s application on, effectively, three grounds.

1. 1. Dr Slaughter’s lawyers had not clearly stated which issues the examination and report would be addressing;
   2. Dr Slaughter had not demonstrated that the doctors he had chosen to form the panel had the appropriate qualifications and experience in all the fields that were nominated by him in his request;
   3. The examination that Dr Slaughter was unreasonable because the suggested doctors would not comply with the conditions Harvey had insisted on for the examination.

Authorities relied on

Dr Slaughter relied on the Court of Appeal’s decision in Day v Woolworths Group Ltd to support the position that a claimant cannot seek to impose conditions on attending a medication examination, nor refuse to attend, if the way it will proceed is objectively reasonable.[1]

Harvey relied on the reasons of his Honour Justice Burns in Bona v Jeffries as to the proposition that a defendant, and his insurer, must satisfy the Court that the examination sought is not unreasonable. A claimant is not considered to have “defaulted” under section 25 of PIPA (for the purpose of section 35 PIPA) where a claimant has refused a request to be examined that is unreasonable.[2]

Harvey further submitted that to determine whether the examination sought is reasonable, the Court (and the parties) must consider the claimant’s personal circumstances. In this case, the Court held that having consideration to Harvey’s personal circumstances and the reasoning of his claim in the matter, it would be unreasonable to require him to attend upon a psychiatrist for the purpose of examination without special procedures in place, which he requested.

Issue 1: the issues were not clearly stated

It was argued, by Harvey, that the legal representatives of Dr Slaughter had not provided consistent correspondence to set out the issues for which the examination was required.

The Court held that the correspondence may have had difference in expression in how the list of issues were states however, he did not form the view that those difference rendered the correspondence as having failed to comply with section 25(1) PIPA.

Issue 2: the appropriateness of the proposed doctors

The Court held that each of the proposed psychiatrists had the relevant and appropriate experience to conduct the examination sought noting that the report would be provided from the view of a psychiatrist as opposed to a pharmacologist or neurologist.

Issue 3: Whether the examination sought was unreasonable

Harvey sought to impose seven conditions on the examination:-

1. 1. A support person be permitted to attend and be present with him throughout the examination;
   2. He be permitted to voice record the examination;
   3. Prohibit his photograph being taken;
   4. The examination go for no longer than 1 ½ hours;
   5. No invasive tests to be conducted;
   6. Dr Slaughter not provide a copy to his insurer any medical information provided to the examining practitioner nor the report however, a representative of the insurer may attend Dr Slaughter’s solicitors’ office to view a hardcopy of this material;
   7. If an “unrecognised condition” is discovered during the examination, the examining doctor is to inform Harvey directly of the condition, the diagnostic tools and criteria used to diagnose together with the clinical data and evidence relied on to diagnose the condition.

At the time of this proceeding, Harvey only sought to impose conditions 1-5.

Having considered each of the conditions,[3] the Court held that it was unreasonable for an examining doctor to require Harvey’s photograph be taken and to insist that the examination take place for more than two hours in a single session. It would be reasonable to allow a break of at least 30 minutes, or longer if Harvey required it. That may mean that several sessions are required over a number of days which Harvey would be obligated to attend under section 25 PIPA.

Further, the Court held that it would not be unreasonable for the examining doctor to prohibit Harvey from voice-recording the examination sessions and/or having a support person present.

Outcome

The Court held that the appropriate course in the circumstances was to adjourn this application to allow Dr Slaughter to ascertain whether the psychiatrist whom Harvey selected from his panel, or the remaining doctors on the panel would be willing to conduct the examination with the reasonable conditions imposed.

If the chosen doctor, or the remaining panel doctors, agree to the conditions, Harvey will be obligated to comply with Dr Slaughter’s request for examination. Should only two of the doctors agree then pursuant to section 25(4), the panel may be reduced to those two doctors and Harvey would need to select one of them as the examining doctor however, should none of them agree then he would not be obligated to attend an examination by any of them.

The application was adjourned and costs were reserved.

This article was written by Ashleigh Fanning

Footnotes

[1] [2018] QCA 105, [25]-[28].

[2] [2021] QSC 84, [24]-[25], [30].

[3] Slaughter v Harvey [2021] QDC 156, [22]-[43].

Permanently staying compensation proceedings involving historical abuse claims

CULTURAL SENSITIVITY WARNING: This case note discusses sexual and physical historical abuse. Aboriginal and Torres Strait Islander viewers are advised that this article contains sensitive information.

Case Note: Willmot v State of Queensland [2022] QSC 167

Background

Ms Joanne Willmot (the Plaintiff) sought to recover approximately $1.7mil in damages from the State of Queensland (the State) for direct liability because she suffered psychiatric injury. The Plaintiff alleged that her injury was a result of sexual and/or serious physical abuse experience while she was in the care of the State in the late 50s to late 60s.

The Plaintiff alleged the State failed to properly monitor and supervise her and those who cared for her when she was a State Child and a person subject to the Aboriginal Protection and Restriction of Sale of Opium Act 1897 (Qld). [1] Further, she alleged that the State knew or ought reasonably have known, that there existed a foreseeable risk of harm of psychiatric injury to her while she was a State Child.

The Plaintiff, a First Nations woman, was a State Child from infancy until about September 1966. She spent time both in an institution known as Cherbourg Girls’ Dormitory (the dormitory)as well as in foster care. The alleged abuse involved:

• Serious physical abuse and punishment while she was resident at the dormitory;
• Sexually and physically abused by her foster father whilst in care;
• Severely neglected whilst in foster care to the point of malnutrition;
• Witnessed the sexual abuse of her foster siblings whilst in foster care;
• Sexually abused by two family members, on two occasions, while she was in the care of her grandmother but still deemed a State Child.

It appeared that the Plaintiff had no recollection of the alleged abuse she suffered whilst in foster care until 2016 after having had a conversation with one of her foster siblings.

The State accepted that it:-

• Operated and controlled the dormitory at the time,;
• Placed the Plaintiff in the care of her foster parents;
• Was responsible for her care while she was a State Child;
• Employed a Ms Maude Phillips as a supervisor of the dormitory in 1959 to 1966 (who was subject of the serious physical abuse allegations); and
• Was responsible for the Plaintiff’s care from 1954 to 1966.

However, the State did not admit to the allegations of sexual abuse by the Plaintiff’s foster father, the sexual abuse whilst the Plaintiff resided with her grandmother, and the allegations about the extent of the duty and knowledge the plaintiff alleged the State had.

Given the abuse is alleged to have occurred over 60 years ago, the State argued it was prejudiced in its defence as it was unable to determine the truth of the allegations as all alleged perpetrators, except one family member, had long been deceased and a fair trial was unachievable. Solicitors for the State also gave evidence that all material relied upon did not mention any of the alleged abuse but for a single anonymous letter of complaint against one perpetrator that was sent to the dormitory in or about January 1951.

The Court’s decision

The Court echoed the decisions of Courts in other States that dealt with similar matters and stated that permanent stays should only be granted in exceptional circumstances. An example of an exceptional circumstance would be where the State (or a defendant) can show, on a balance of probabilities, that a fair trial will not be achievable.

The Court held that even though there was significant documentary material in this matter, oral evidence would be a serious consideration at trial; given all but one witness are deceased and any remaining witnesses memory would unlikely be of significant quality given the passage of time. In the circumstances, the Court found that the State would not be able to fairly defend the claim and achieve a fair trial.

Consequently, Bowskill CJ granted a permanent stay of these proceedings.

How does this affect future historical abuse claims?

Allegations of historical abuse are no longer subject to limitations in Queensland, meaning a person can bring such a claim at any point in time. As a result, Courts have the power to permanently stay proceedings where it is unfair to a defendant to allow the matter to run its course.

A person wishing to make a claim for historical abuse may have to face the challenge of time however, all may not be lost, and justice may still be possible. Further, if a defendant (or institution) is facing such a claim and is unable to fairly defend the matter given these obstacles, this case serves as a precedent for seeking a stay of proceedings.

Do you need assistance in a historical abuse claim?

If you have suffered an injury or have been served an injury claim relating to historical abuse, speak to a lawyer.

Our compensation lawyers can assist you in advising you of your options and the processes available to you and represent you in relation to the claim.

Contact the author or our compensation team to make an appointment with us today.

Footnote

[1] State Children Act 1911 (Qld) – “[a] neglected child, convicted child, or any other child received into or committed to an institution or to the care of the Department, or placed out or apprenticed under the authority of this Act.”

Case Note: Apportionment of liability

How does the Court apportion liability in instances where there has been contributory negligence by both parties? The Queensland Supreme Court’s decision in Smith v Randall[1] is one which considered this in light of two drivers who were found guilty of contributory negligence.

The Facts

At around 5:00am on 21 January 2013, Mr Randall was driving his utility vehicle west along the Gore Highway, outside of Toowoomba. Mr Smith was travelling behind Mr Randall in a milk truck.

Mr Randall slowed his utility vehicle to about 10kilometres per hour and moved toward the central line of the road without indicating. Mr Smith thought that the utility vehicle ahead was either broken down, travelling slowly or completely stopped. Mr Smith attempted to overtake as Mr Randall turned right causing the two vehicles to collide and the utility vehicle to roll. Both drivers were injured in the accident.

Both Mr Randall and Mr Smith brought actions in negligence claiming damages for the injuries they sustained from the accident. AAI Limited (Suncorp Insurance) was the compulsory third party insurer of both vehicles.

Both drivers owed a duty of care to take reasonable care in the control of their respective vehicles so as to prevent harm to the other (at [61]). It was reasonably foreseeable that if precautions were not taken that serious harm to another road user could result.

Mr Smith’s liability

Mr Smith gave evidence that he did not slow down more because he thought Mr Randall was either broken down, travelling slowly or completely stopped. He also gave later evidence that he thought the utility vehicle was going to turn left and ‘apex the turn’ (at [12]). His Honour found this evidence unconvincing given that the vehicle had slowed to 10 kilometres an hour. Further Mr Smith knew that  drivers on those roads did not always indicate their intention to turn.

The Court found that a reasonable person would have decelerated after they had realised the utility vehicle was slowing down, regardless of the driver not indicating. Mr Smith’s failure to take these precautions meant that he had breached his duty.

Mr Randall’s liability

The Court also found Mr Randall’s evidence to be ‘completely unconvincing’ (at [27]). Mr Randall had failed to use an indicator before turning and if he had looked in his rear and side view mirrors he would have seen Mr Smith’s headlights approaching. He had therefore made a right turn when it was unsafe to do so. Mr Randall claimed that the truck ‘seemed to come out of nowhere.’ However this was a result of his failure to check the mirrors. In light of this his Honour found that Mr Randall had driven without due care and attention.

Mr Randall was also intoxicated at the time of the accident with a blood alcohol content of 0.058% taken at the scene of the accident. The Court held that his intoxication had contributed to his failure to use an indicator and to drive with due care and skill. Therefore pursuant to s 47 of the Civil Liability Act 2003 (Qld) Mr Randall fell within the presumption of contributory negligence. Mr Randall was unsuccessful in rebutting this presumption.

The Court found that a reasonable person would have used an indicator and kept a proper lookout for other vehicles. Mr Randall’s failure to take these necessary precautions meant that he had breached his duty.

Apportionment

The Court explained that apportionment of liability between the two parties involves a ‘comparison of both culpability, that is the degree of departure from the standard of care required of the driver, and of the relative importance of the acts of the parties in causing the damage (at [74]).’ On the one hand Mr Randall was vulnerable to injury by a following car who did not slow down or who attempted to overtake him. On the other hand, Mr Smith was vulnerable to injury if he collided with a vehicle who obstructed his path whilst he attempted to overtake it (at [76]). The Court was of the opinion that both parties had to a substantial degree departed from the standard of care required of them and thus there was no real difference in culpability. The Court therefore apportioned liability equally between Mr Smith and Mr Randall.

Lessons

Following vehicles (like Mr Smith), are usually in a better position than leading vehicles (like Mr Randall) to avoid collision because they have a better view of what is in front of them. On this basis it should have been more difficult for Mr Smith to prove that Mr Randall had been negligent. However Mr Randall’s intoxication played a significant role in diminishing his advantage of being the leading vehicle. Drivers should remember whether they are the leader or the follower, they owe the same duty of care to take reasonable care in the control of their vehicle so as to prevent harm to the other.

For more information regarding contributory negligence

Please contact our Business Development Team or call us on (07) 3252 0011 to book an appointment with one of our specialist No Win No Fee Brisbane Lawyers today.

Footnotes

[1] [2016] QSC 191.

In the event of injury or death on a construction site, who is responsible?

Under Workplace Health & Safety Laws are you or the Principal Contractor responsible?

The Workplace Health and Safety Act 1995 (Qld) places significant obligations on “principal contractors” to ensure the safety of persons on a construction site.

In the event of death on the construction site caused by the failure of principal contractor’s to comply with its WH&S obligations and construction site deaths are caused, the principal contractor and its executive officers (executive officers may include directors and senior management) are liable for fines of up to $2 million and three years jail.

Question: Who is the Principal Contractor under the WH&S Act?

Answer: Common sense would suggest that the principal contractor is the builder you commissioned to do the work. However, that isn’t necessarily the case. As absurd as it might sound, you might be the principal contractor!

 The builder you appoint to undertake the construction work will usually be automatically treated as the principal contractor provided the construction work:

(a) does not involve demolition works or the removal of friable asbestos containing material; or

(b) is for the construction of a detached or semi-detached residential dwelling; or

(c) is estimated to cost less than $80,000.00.

This means that for all demolition work and asbestos handling work and all non-residential construction work over $80,000 the builder you appoint to do the work will not automatically be treated as the principal contractor under the WH&S Act.

Instead it is your responsibility to formally appoint your builder as the principal contractor.

You appoint a principal contractor by completing and submitting to the builder and your local WH&S Office before the construction work begins a Form 32a Notice of Appointment of Principal Contractor.

If you do not properly appoint a principal contractor, the person who commissioned the construction work (i.e. you), is taken to be principal contractor!

This means you and your executive officers will (unwittingly) assume the obligations of a principal contractor under the WH&S Act and the criminal and civil consequences that will arise in the event of injury or death on the construction site.

If you are about to start a building project at your site please talk to Corney & Lind about what you need to do to appoint a principal contractor.  Even if you properly appoint a principal contractor, there are still some WH&S obligations that you are required to comply with.

Talk to us about those obligations.  We can also advise you on some special conditions to insert into your building contract that will provide an added layer of protection in relation to WH&S obligations on the construction site.

Are you considering appointing a project manager but not a principal contractor for your next project?

It is not uncommon to appoint only a project manager and not a principal contractor (In such a scenario, your project manager on your behalf directly appoints all the individual tradespeople and suppliers for the project rather than the principal contractor sub-contracting the work).

Talk to Corney and Lind before you take this course of action as you may be assuming not only the WH&S obligations of a principal contractor but also liability for other common law claims.

What next? Contact one of our Business Development Officers today …

Business Development Officers

We now have a dedicated team of Business Development Officers to assist you in engaging with us. Our Business Development Officers will assist you with:

• • understanding what your need is and what your time frames are
  • identifying the best lawyer on our team for you and your need
  • explaining what it will cost
  • explaining what you need to do next and what initial information you will need to have for us
  • getting your initial appointment locked in
  • hearing your feedback so that we can always be improving our services

Communication with our Business Development Officers is absolutely free. Call (07 3252 0011) or email one of our Business Development Officers (General Enquiry) now.

Psychiatric Injury and Employers Duty of Care

In personal injury matters, it is an accepted precedent that an employer does not breach a duty of care to take precautions against risk of injury to a worker unless:

• The risk was foreseeable (that is, a risk the employer knew or ought reasonably to have known);
• The risk was not insignificant; and
• In the circumstances, a reasonable person in the employer’s position would have taken the precautions.

In this article, we will be examining part (c), and what it means for an employer to take precautions to prevent a psychiatric injury. This is part of exercising employers duty of care.

Proving liability for psychiatric personal injury is typically more challenging than proving liability for physical injury. When it comes to psychiatric injury alleged to have been caused by the employer, there are several factors which will be taken into consideration when determining whether it was reasonable for an employer to take certain precautions to prevent the injury.

Risk assessments should be carried out, much in the same way that an employer would do for preventing physical injury. Where there is a foreseeable and significant risk to an employee, the employer should consider what precautionary measures, including training and procedures, need to be taken to both prevent and respond to a traumatic incident in the workplace.

If an employer fails to consider and implement precautionary measures, this will contribute to an assessment of whether they fulfilled their duty of care to prevent psychiatric injury. This is especially relevant in occupations that are highly stressful or emotive, such as social work, emergency care, counselling and youth work.

This issue was recently considered in the case of Greenway v The Corporation of the Synod of the Diocese of Brisbane (read the full case note here) in which the applicant, Ms Greenway, worked for Anglicare as a residential carer for young people. On the night of the incident, Ms Greenway (who was the only worker in the house at the time) was assaulted and threatened by a young person in her care. The young person became agitated after Ms Greenway refused to take him to visit a friend. In his anger, the young person verbally abused Ms Greenway, threw a phone at her, kicked in a window and then threatened her with a large shard of glass.

While the incident was occurring, Ms Greenway spoke with her team leader (Mr Mafulu) on the phone. Mr Mafulu became aware, through this phone call and hearing the commotion going on, that the young person was being aggressive. Mr Mafulu was also aware of the young person’s aggressive history. Ms Greenway ended the call by saying that she would call Mafulu back.

Ms Greenway was able to calm the young person down and de-escalate the situation, after which time she phoned Mr Mafulu and informed him of what had happened and how she had calmed the young person down. Mr Mafulu made the decision that he did not need to attend the house, as Ms Greenway had de-escalated the situation, and did not offer to send a second staff member to assist her; Ms Greenway did not at any time ask for help. Ms Greenway remained with the young person for the remainder of her shift which was throughout the entire night and until the afternoon of the following day.

Ms Greenway was not physically injured but sustained a psychological injury, partly because she was required to care for the young person alone, after the assault.

It was decided that Anglicare breached it’s duty of care by failing to take reasonable precautions, including:

1. Established guidelines for on call Team Leaders to support workers caring alone for young people with complex or extreme support needs; and
2. Trained on call Team Leaders in how to assess a worker’s welfare in the aftermath of a crisis, considering emotional and psychological issues as well as physical safety.

It was also decided that the breach of the employers duty of care caused the injury, in that by failing to take these reasonable precautions Anglicare had not properly trained Mr Mafulu in how to handle such circumstances. Consequently, Mr Mafulu provided an inadequate response to the situation which resulted in Ms Greenway’s ongoing exposure to the potential of further harm (through the night and into the following day) and contributed to her injury.

On this basis, damages were awarded to Ms Greenway in the amount of $454, 935.68.

This case highlights several factors that are relevant in determining whether an employer has discharged their duty of care to an employee, including the provision of adequate employee training in how to respond to a workplace incident, and the impact of employer actions leading up to and following a traumatic incident.

If an incident occurs in the workplace, an employer must be mindful of how their actions in dealing with the matter may cause, or prevent, further injury to an employee. It is likely that a failure to train staff in how to recognise and deal with a psychologically challenging event will be a breach of the duty of care, especially where

Predicting the Future – Claims for Future Economic Loss

Case note: O’Connor v Wright [2021] QDC 173

In this matter, the Plaintiff made a claim for compensation arising from personal injuries sustained in a motor vehicle accident dated 5 January 2018. The matter was taken to trial in the District Court of Queensland in the Brisbane Registry.

Facts

On 5 January 2018, Jessica O’Connor (the Plaintiff) was driving her motor vehicle on the Bruce Highway at Palmview. She had slowed her vehicle nearly to a stop when Lawrence Wright (the First Defendant), who was traveling in the same direction, changed lanes and collided with the rear of the Plaintiff’s vehicle, forcing it into another vehicle in front. The Plaintiff’s vehicle was extensively damaged in the collision.

The First Defendant and his CTP insurer Suncorp Insurance (Second Defendant) admitted liability in full for the accident. This means that the only question which remained for the court was the question of ‘quantum’ (i.e., the amount of compensation that the Plaintiff was entitled to).

The Plaintiff

The Plaintiff was 16 years old at the time of the collision and was about to start year 12 at school. The Plaintiff was a high academic achiever, working up to 30 hours per week in hospitality. She also participated in volleyball and netball teams.

The Plaintiff had also been suffering for scoliosis since several years prior to the accident.

The Injury

The Plaintiff sustained a soft tissue injury to her spine, aggravating her scoliosis. There was no dispute that this aggravation was a result of the collision.

The Claim

The plaintiff sought damages in the amount of $213,077.44 plus interest. At the conclusion of the trial, the Plaintiff amended the amount claimed to $99,650.00 as follows:

• • General Damages (hurt, pain and suffering) = $16,150.00

• • Past Special Damages = $1,500.00

• • Future Expenses = $2,000

• • Future Economic Loss = $80,000.00

• • TOTAL = $99.650.00

Decision

The judge found that, in consideration of the evidence provided from independent medical exams of the Plaintiff, the Plaintiff had no ongoing whole person impairment. As such, her injuries had almost resolved by the time of trial. In paragraph 16, His Honour Justice Moynihan QC DCJ stated:

“On the whole of the evidence, I am satisfied on the balance of probabilities that the Plaintiff did suffer a mild whiplash injury to her cervical spine that has almost completely resolved and that her lower back pain was secondary to an aggravation of her thoracolumbar scoliosis. The aggravation of her scoliosis has also almost completely resolved, and the ongoing back pain is mainly the result of her pre-existing symptomatic condition. The soft tissue injuries, although initially more intense, have almost resolved, at the latest by the time of trial, and the Plaintiff has no ongoing whole person impairment…“

Moynihan QC DCJ found that the Plaintiff’s earning capacity had been diminished by reason of the injury caused by the First Defendant’s negligence. However, His Honour also noted that the impact of the injury upon future earnings is very difficult to assess due to the Plaintiff’s age and life stage. His Honour concluded that the extent of the loss will be limited, stating in paragraph 37:

“The 19 year old Plaintiff’s future career ambitions, if any, are uncertain. Her life could take various paths and the impact of an injury such as this is difficult to assess. It is very finely balanced but synthesising the considerations I have identified, I am satisfied that the diminution in the Plaintiff’s earning capacity may produce financial loss, however the extent of that loss will be limited.”

In summary the Judge assessed the damages to be as follows:

• • General Damages = $10,900.00

• • Past Special Damages = $1000.00

• • Future Expenses = $500.00

• • Future Economic Loss = $17,500.00

• • TOTAL = $29,900.00

Lessons

A Plaintiff’s claim for future economic loss is often a key dispute between a Plaintiff and the Defendant insurer. This is because

• • The claim for future economic loss can be a substantial part of the overall claim; and,

• • The claim for future economic loss requires an element of crystal-ball gazing into the future, which can lead to dispute between the parties.

Indeed, while the Plaintiff was successful in her case, she ultimately only obtained a judgement of $29,900 (as opposed to her initial claim of $213,077.44 plus interest). This is largely due to His Honour’s view of her injuries and the impact it will have on her future.

This article was written by Sarah Gates & Luke Borgert

Increases to Workplace Health and Safety Penalties for Queensland

All jurisdictions (except Western Australian and Victoria) have adopted harmonised work health and safety legislation over the past five years. Under the Work Health and Safety Act 2011 (Cth) (‘WHSA’), recent decisions indicate courts are now more willing to impose higher range penalties for Workplace Health and Safety (‘WHS’) breaches.

Current Penalties

At present, these harmonised WHS legislation penalties come under three categories:

1. 1. Category One involves recklessly exposing an individual to risk of death or serious injury or illness, facing up to a $3 million penalty for corporations or $600,000 and five years imprisonment for officers.
   2. Category Two entails exposing individuals to risk of death or serious injury or illness, with corporations subject to a maximum $1.5 million of penalty or $300,000 for officers.
   3. Category Three is brought about where there has been failure to comply with Health and Safety duty, and involves a maximum $500,000 penalty for corporations and $100,000 for officers.

Large penalties imposed by State Courts

South Australia

On 19 April 2017, the South Australia District Court handed down its largest penalty to date of $650,000 under the WHSA.[1] In this case, the employer was charged with a Category two breach, even though the employee only suffered a wrist sprain as a result from the incident. The case involved an employee undertaking a new chemical waste product test process whom had been incorrectly advised regarding the temperature of the product during the distillation process. In opening the release valve, an explosive rush of air resulted and covered another employee in undistilled material.

In awarding the penalty, her Honour took into account: the aggravating factor of foreseeable risk of injury, inadequate response undertaken for a foreseen risk, systematic failure of employer to address the foreseeable risk, the potential of death or serious injury that may have manifested, neglect of well-known precautions to deal with significant risk of injury leading, prior contraventions by the defendant of Cth WHS legislation and prior instances of a similar incident.

New South Wales

On 5 May 2017, NSW handed down its largest penalty of $1 million under WHSA, where the employer was convicted of a category two offence.[2] The case involved the company’s blatant disregard for safety obligations when instructing a subcontractor to install angles on a window knowing the scaffolding outside could not be used without a person coming within three metres of high voltage power lines. In carrying out instructions, the worker then suffered severe electric shock and burns to 30% of his body when the angle being held by him came into contact with power lines.

In handing down the fine, His Honour took into account the factors such as: the risk was known to workers and had a high likelihood of occurring if control measures were not adopted, the risk likelihood was increased when handling tools within close proximity of power lines, the defendants knowledge of the risk, the gravity of significant risk including death, prior prohibitions by defendant on the same subject matter, the knowledge by the defendant of the task content and requirement of steps to eliminate and avoid risk with no steps undertaken to do so.

What does this mean for Queensland claimants?

The Queensland Government has recently announced a best practice review of Workplace Health and Safety Queensland in April 2017 and introduced a new criminal WHS offence of ‘negligence causing death’ in May 2017.

With the penalty increase handed down interstate, it is anticipated that prosecutions will rise and the court may become more willing to consider larger penalties when faced with serious breaches.

This serves as a reminder to duty holders that serious charges could be brought against them if they fail to take proactive steps to ensure health and safety of workers and can resulting in serious penalties

Practical Jokes in the Workplace – when a joke goes too far.

Practical jokes and horseplay are undoubtedly an iconic aspect of Australia, given our global recognition as humorous ‘larrikins’.

These practical jokes are often brought into the workplace upon which employees prank, tease and trick each other. These workplace pranks aren’t intended to be maliciously hurt or bully other colleagues, but rather are designed to provoke something all Australians love: a good laugh. Yet, these practical jokes and pranks around the workplace may soon become a thing of the past, with the recent ruling by the Supreme Court of Queensland in Cincovic v Blenner’s Transport Pty Ltd.

The workplace prank gone wrong

48-year-old Goran Cincovic (the plaintiff) worked as a truck driver in Brisbane. On 30 March 2014 Mr Cincovic was making deliveries and parked his truck at a Blenner’s Transport (the defendant) depot. While at the depot, the plaintiff needed to return a pallet jack into his truck. To move the pallet jack into his truck, Cincovic rode it like a scooter by placing one foot onto each of the tyres of the pallet jack whilst holding onto the handle with both hands. The plaintiff pushed the pallet jack with his foot and began to slowly roll across the dock area towards his truck.

While he was crossing the floor, another employee, Starling, approached Cincovic from behind and used his foot to push one of the tyres of the pallet jack. This push caused Cincovic to fall backwards off the pallet jack, causing his back and head to strike the concrete floor. Cincovic sustained compression fractures to his spine as a result of this incident.

Taking the case to court

Court rejected allegations the employer allowed horseplay in the workplace

Starling claimed that him pushing the tyre was a practical joke, as he and Cincovic were involved in horseplay.

However, Cincovic denied any involvement with Starling that would constitute skylarking or horseplay. Cincovic claimed that skylarking and horseplay was never prohibited at the workplace. In fact Cincovic claimed that he had seen employees riding pallet jacks, doing burn-outs with forklifts in the wet area, turning off the gas to the forklift and lifting people on pallet jacks into trucks. Cincovic claimed that even though the supervisors observed this horseplay the employees were not reprimanded. However, these allegations were denied by several supervisors during cross examination.

The court found in favour of the defendant in this aspect, ruling that the supervisors provided enough evidence to prove that they prohibited horseplay practices at the workplace.

Deciding the Employer was liable

Although the Court rejected these allegations that the defendant (Blenner’s Transport) permitted horseplay, they still found the defendant vicariously liable (this is when you’re found liable for someone else’s actions or failings – particularly relevant for employers) for Starling’s actions.

In making their decision, the court considered the connection between the wrongful act and Starling’s employment, and whether it would be fair and just to ascribe vicarious liability for that wrongful act.

The court ultimately found that Starling’s act of pushing the pallet jack could properly be seen as an action to assist in the transportation of the pallet jack to its desired location. The court was satisfied that “Starling’s act, whilst unauthorised, is properly to be viewed as having occurred within the scope and course of his employment with the defendant.”

The defendant was therefore held to be vicariously liable for Starling’s actions and any consequent injuries sustained by the plaintiff.

How much compensation was paid?

The Court considered the extent of Cincovic’s injuries and calculated his past and future earning and superannuation loss, future medical expenses and other relevant factors before deciding on a compensatory sum.

The court ultimately ruled that the plaintiff was to be compensated $874,669.70 (minus WorkCover deductions) for the loss suffered as a result of his injuries.

Take-aways: be careful with practical jokes in the workplace.

This recent judgment has placed an unprecedented expectation on employers to implement strict standards and rules to ensure workplace horseplay is prohibited.

For employees, this judgement serves as a warning against practical jokes in the workplace. Employees should think twice before pranking their colleagues, as this case shows that the long-term consequences may outweigh the short-term fun.