Shopper’s evidence “strains incredulity” when tested against surveillance video

A customer who failed in a substantial damages ask against Coles for an injury in its supermarket carpark has suffered the further indignity of having her eligibility for a disability pension questioned.

Jacqueline Pike had packed her groceries into her car after doing her weekly shop at the Cambridge Park store in Boomerang Place in Western Sydney.

Upon taking a backwards step into an adjacent parking bay to give herself room to shut the passenger side door, her right foot descended 20 cm into an uncapped drainage pipe causing her to fall heavily onto her buttocks and aggravate an existing spinal condition.

Coles occupied the entire allotment on and was specifically responsible under its 20-year lease for the maintenance of the car park except for fair wear and tear and items of a structural nature.

Jacqueline issued proceedings in 2017 in the NSW Supreme Court against Coles and the owners of the centre for damages including $700k for loss of income and $375k for future domestic care.

Emails and notices produced by agents Raine and Horne established that it had – on behalf of the owners – reminded and pressed Coles to fulfil those obligations with reasonable frequency.

Despite those reminders, Coles could produce no evidence that it had inspected the condition of the car park or had taken any steps to remediate any defects.

Although unable to prove the duration of the pipe’s unsafe status Justice Michael Walton was satisfied “that the hole had been open at least since the previous day but most likely for a longer period sufficient to enable the cover to be removed and for debris to accumulate”.

“In those circumstances,” he observed “Coles failed to take reasonable precautions, either by failing to have and applying any system of inspection, maintenance and repair, or adopting a system which was wholly inadequate” and was responsible for that breach.

On the other hand there was no basis for holding the owners had breached any duty in relation to the carpark’s upkeep.

His Honour them turned his mind to the permanent disability and pain – based on Jacqueline’s self-reporting – that was reported upon by numerous medical experts.

Those self-reports – and the medical evidence premised upon them – were made entirely redundant by surveillance footage that demonstrated she had significantly greater physical capacity and less restriction than she made out and had been working to a far greater extent than she had revealed.

The video footage was compelled a picture “inconsistent with the plaintiff exhibiting pain or physical limitation and…sits ill with her evidence as to incapacity to work”.

Justice Walton believed Jacqueline had “a very strong work ethic” and was not concerned – in terms of her credit – by the “trousering of a couple of $50 handed to her”.

But that’s where the latitude extended to the 48-yr old former office manager stopped.

“I find the plaintiff’s evidence is unsatisfactory, exaggerated and …in many respects strained incredulity. She has a capacity to work, even to undertake arduous work, with pain managed adequately by medication”.

Even her meeting the requirements for a disability pension must, in His Honour’s view “be doubted”.

But even with those adverse findings he allowed a global award of $50k for future loss of earning capacity and a general damages assessment “at 29% of the most extreme case”, which translates to $123.5k.

Her damages were however reduced by the $158k already paid by Coles.

Pike v Coles Supermarkets Australia Pty Ltd; Pike v Solomon [2021] NSWSC 1492 Walton J, 19 November 2021 Read case

source https://cartercapner.com.au/blog/shoppers-evidence-strains-incredulity-when-tested-against-surveillance-video/

Servo worker rolls WorkCover on “injury just waiting to happen” ruling

A long serving customer service attendant whose overuse injury was rejected by WorkCover and the Workers’ Compensation Regulator has got up on appeal by overturning specialists’ opinions to the effect that her debilitating shoulder injury was one “just waiting to happen”.

Saher Nathwani – whose duties included stocking and operating the convenience store section, console service, cleaning and fuel dispensing – had been a loyal employee at the Caltex owned service station on the Gold Coast highway in Surfers Paradise since 2008.

She sustained a right shoulder injury in 2016 from heavy lifting in the convenience store for which she received time off work benefits.

In resuming full duties – after a stint with a reduced workload while her right arm was in a sling – the “automatic” favouring of the injured right shoulder caused her to suffer a left shoulder injury from repetitive lifting of heavy weights above head height.

As her workload also increased, so did the pressure on her left shoulder.

She was though in two minds about whether and how to report her condition to her doctor because of a warning from her supervisor that a claim might have an effect on her long service entitlements.

Suspicious of the delay between the development of symptoms in July 2017 and notifying her GP six months later, WCQ rejected Saher’s February 2019 application for assessment of the degree of her permanent impairment after coming to the conclusion that the injury did not arise from her employment nor was her employment a significant contributing factor.

On review, the Regulator conceded the left shoulder injury but ruled – relying on opinions from orthopedist Peter Dodd and occupational physician Andrew Lingwood to confirm the WCQ decision – she had a degenerative condition and the “employment was merely the setting in which the natural process of the idiopathic disease emerged”.

Dr Dodd’s view was that “just because an individual gets pain at work doesn’t necessarily mean to say the pain was caused by work”.

Armed with an opinion from Malcolm Wallace contrary to those of his colleagues, Saher appealed to the Queensland Industrial Relations Commission for a ruling that the overuse injury arose from her work at the Caltex servo.

At that hearing, it was accepted that she was frequently required her to reach above shoulder height to get at stock and lift items of 15kg to 20kg in weight.

Despite the Regulator’s attack on Saher’s credit and what it argued was ‘self-serving’ evidence, Deputy President John Merell found her account of what she claimed had occurred and what she re-told to the various medical examiners to be “generally consistent”.

“I accept her as a witness of credit,” he declared.

Turning to the expert reports, he judged the opinions of GP Gillian Coleclough – who had treated Saher since 2015 – and Dr Wallace who had detailed knowledge of her duties carried greater weight than those of Drs Dodd and Lingwood

“On the basis of Dr Wallace’s evidence, I am of the view that, on the balance of probabilities, Ms Nathwani’s left shoulder adhesive capsulitis arose out of, or in the course of, her employment,” he decided.

He ordered the Regulator’s decision to be set aside and a decision that Ms Nathwani has an injury within the meaning of the Act substituted in its place.

In a subsequent decision he ordered the Regulator pay her legal costs limited to the day of the hearing.

Nathwani v Workers’ Compensation Regulator [2021] QIRC 325 Merrell DP, 21 September 2021

Nathwani v Workers’ Compensation Regulator (No. 2) [2021] QIRC 351 Merrell DP, 18 October 2021

source https://cartercapner.com.au/blog/servo-worker-rolls-workcover-on-injury-just-waiting-to-happen-ruling/

Partygoer burn victim holds Rockhampton venue for $800k claim

The Court of Appeal has refused to interfere with the exercise of discretion by the Central Judge in Rockhampton as to the suitability of his court to determine a claim concerning an injury sustained near Toowoomba.

Terry and Nicole Ryan hosted their son’s 21^st birthday celebration at their rural property near Jondaryan in February 2019.

Charles Dearden – one of the 200 or so guests who stayed overnight – sustained an injury when another partygoer poured petrol from a nearby fuel can, onto his swag and set it alight while he was sleeping inside.

Alleging negligence on the part of his hosts for failure to adequately supervise the event, Dearden – who suffered burns to his chest, armpit and back – engaged Rockhampton solicitors who filed an injury compensation claim against Mr & Mrs Ryan in the Supreme Court there in April 2021.

Their liability insurer promptly filed a Defence to the $800k claim and an application to have the proceedings transferred to Toowoomba or alternatively, Brisbane.

The application came before Justice Graeme Crow in June and was duly refused on the grounds that neither convenience nor fairness favoured a transfer to another location.

Among other things His Honour considered a trial in Rockhampton would probably occur more quickly than elsewhere.

Dissatisfied with the outcome, the insurer appealed, complaining such assessment was unreliable given it was made many months before the action would be ready to be listed for trial.

That contention was rejected by the appeal judges.

“His Honour’s assessment was obviously premised on listing probabilities rather than certainties,” noted Justice Jim Henry in delivering the lead judgement. “As the resident judge in sole control of the Rockhampton Supreme Court list, he is well placed to assess those probabilities”.

The insurer also criticised Justice Crow’s rejection of its submission that the comparative cost of witness transport and accommodation would be higher for a Rockhampton trial than for one in Toowoomba.

His Honour had though “repeatedly explained” that the issue of witness attendance costs was something about which he “could not reach any firm conclusion”, because it was not then known which witnesses would likely be called to give evidence.

On the same grounds he had declined to accept the proposition that – because of the location of the event and the places of residence of the attendees – the majority of witnesses would be drawn from Darling Downs and Brisbane areas.

Justice Henry concurred in the rejection of those arguments.

The fact that more potential witnesses resided in SEQ didn’t mean that the majority of witnesses who give evidence would be from that region. Such logic would only have been useful, he observed, if the witnesses were known and identified at the time Justice Crow had made his ruling.

The judge’s exercise of discretion was well within the bounds of reasonableness and given that it was one relating to procedure rather than to substantive rights, should not – the appeal judges agreed – be interfered with by an appellate court except in the case of a substantial injustice to a party.

The onus was on the insurer to establish such injustice and having failed to do so, the appeal judges unanimously rejected its appeal.

Robert Taylor – Dearden’s assailant who pleaded guilty to grievous bodily harm and is serving a two-year suspended jail term – has been joined to the proceedings by the insurer as a third party.

Dearden filed a Request for Trial last week suggesting the trial is likely to proceed in short order at Rockhampton.

Ryan & Anor v Dearden & Anor [2021] QCA 245 Bond JA and Boddice and Henry JJ, published 22 November 2021

source https://cartercapner.com.au/blog/partygoer-burn-victim-holds-rockhampton-venue-for-800k-claim/

Emirates Airlines crashes on second attempt to defeat claim by injured passenger

A passenger who sustained a minor cabin injury aboard an Emirates B777 and who chose to sue in Australia has achieved a major legal breakthrough for all Australian international airline passengers.

Stephen Bradshaw boarded the flight to Brisbane via Dubai in Dublin in January 2019. It was shortly before arrival into Dubai that a hard-shell child’s Trunki suitcase fell out of an opened overhead locker as the aircraft banked and struck him on the right temple causing an observable red mark and a headache.

Although the 28-yr-old could also have sued in Ireland or indeed in the U.A.E. for his resulting neck injury, the Australian resident chose to run the gauntlet of the anti-consumer NSW Civil Liability Act (CLA) by starting his injury compensation proceedings in the Federal Court in Sydney.

When he filed his lawsuit against the airline for compensation, the decision Grueff v Virgin Australia – adverse to his prospects – had yet to be delivered by the very same court.

What Grueff – which concerned a Virgin aircraft cabin injury en route from Bali to Sydney – had decided was for the 15% general damages barrier in CLA s16 to be “picked up and applied” to the award of compensation for “bodily injury” under the federal Civil Aviation (Carriers’ Liability) Act (CACLA) which applies the Montreal Convention.

Philip Grueff – who sustained symptoms of poisoning after being served contaminated water mid-flight – was denied damages because his stomach cramps, nausea, diahorrea, fatigue, anxiety etc could not be said, without interpretative expert medical evidence, to be a “bodily injury”.

Justice John Grifiths went on however to venture that because CACLA itself does not specify how international injured passenger damages are to be formulated, the CLA had to be used as “surrogate federal law” to fill in the gaps.

As in the case of Philip Gruelf, the injury for which Stephen Bradshaw sought compensation from Emirates Airlines, was relatively minor.

With conflicting accounts of the aftermath of the event and his complaints about symptoms, Justice Angus Stewart noted Bradshaw – who had unsuccessfully requested to be moved into a business class seat – “never sought any medical or physiotherapeutic advice or treatment for the injury or any referred pain”.

He assessed general damages at just $5k but as the injury fell well short of the CLA s16 15% impairment threshold, he could only award it to Bradshaw if the section had no application.

Judiciary Act, s 80 would – he reasoned – only “pick up” the “common law in Australia as modified by the Constitution and by the statute law in force in the State” if CACLA’s provisions were “insufficient to carry them into effect, or to provide adequate remedies”.

In his view though CACLA and the Montreal Convention of themselves provide a complete cause of action for the recovery of compensatory damages for “damage sustained”.

In the absence of any “gap”, no s 80 recourse was required – His Honour observed – to the common law or other law. And because the CACLA “otherwise provides” nor did s 79 (1) apply.

As in TPA and ACL cases, a claimant’s entitlement to CACLA damages has, Justice Stewart explained, a statutory source in which the court’s task is “to select a measure of damages which conforms to the remedial purpose of the statute”.

To apply that part of the CLA containing the 15% general damages threshold to international carriage cases would, Justice Stewart observed, “fundamentally distort the structure of the rights and interests of carriers and injured passengers as expressed in the Montreal Convention”.

“The two regimes are substantially different and inconsistent with one another,” he wrote in his 40 pages of reasons. “To pluck one component out of one scheme and impose it on the other would create such distortion as to be in conflict with that other scheme”.

The means of assessing damages was analogous to the common law because those norms had been relied on over the years “indirectly as a source of guidance”. That exercise concerned only assessment of damages and was not a necessary component of arriving at the remedy itself.

Justice Stewart’s ruling substantially accords with that of Justice Andrew Keogh in the Victorian Supreme Court who rejected a similar submission from Emirates in 2018 in which it relied on Judiciary Act s 79 in an endeavour to defeat a injured passenger claim by importing Victoria’s anti-consumer Wrongs Act provisions.

The ruling takes precedence over that of Justice Griffiths as his decision was ‘obiter’, ie strictly unnecessary for the determination of Mr Grueff’s case which was decided on the basis Mr Grueff had no ‘bodily injury’ to start with.

Bradshaw v Emirates [2021] FCA 1407 Stewart J, 12 November 2021

Grueff v Virgin Australia Airlines Pty Ltd [2021] FCA 501 Griffiths J, 12 May 2021

source https://cartercapner.com.au/blog/emirates-airlines-crashes-on-second-attempt-to-defeat-claim-by-injured-passenger/