Everywhere worker gets green light to sue in Queensland for NT injury

A worker has been allowed to sue in Queensland for damages over an on-the-job injury in the Northern Territory by proving her usual employment was in no particular state.

Lisa Covill – a chef – signed up with Atlas People Pty Ltd in August 2019 on the promise of being able to work on a variety of assignments in different locations and to “see the wide open landscapes” of Australia.

The 25-yr-old’s prior work was all based in the south-east Queensland. Her first assignment for Atlas – a labour hire company specialising in hospitality services – was in Bateman’s Bay, NSW.

She was told that as long as she did well, there would likely be another contract as Atlas had more contracts than it could fill.

In December 2019 – on her second assignment this time to Daly Waters in the Northern Territory – she sustained an injury in the course of her employment for which she alleged Atlas was responsible.

WorkCover Queensland accepted her application for compensation but refused to respond to her notice of claim for damages because her employment “was not connected with Queensland”.

It argued – for the purposes of s 113(3) of the Workers’ Compensation and Rehabilitation Act – that the NT was the state in which she “usually works”.

Aggrieved by that decision, Covill applied to the Queensland Supreme Court for a declaration as to the existence of the appropriate “connection” so that she could pursue damages beyond the amount of work covers lump sum offer.

She argued the state in which she “usually works” or was “usually based” was Queensland, because she had been signed up by Atlas in Brisbane, payrolled from Brisbane and her employment terms specified “instructions for this role will come to you exclusively from Brisbane”.

Alternatively – she asserted – if there was no particular state in which she usually works or was usually based, her employment was “connected with” Queensland by operation of s 113(3)(c) because Atlas’ principal place of business was in Brisbane.

When the matter came before him, Justice Peter Applegarth observed that “the state, if any, in which the worker ‘usually works’ is not determined by deciding the State in which the worker spends the majority of his or her time”.

Rather, regard “must be had to the worker’s work history with the employer and the intention of the worker and employer”.

WCQ claimed there was no ongoing employment arrangement at all because of the absence of any guarantee by Atlas of further contracts or by Covill to accept any further assignments.

In the court’s view though, there was an expectation and a probability that a further assignment would be offered and accepted if the previous assignment proved satisfactory.

Notwithstanding the strong Queensland element including a provision in the agreement that specified the laws of Queensland, Justice Applegarth was not convinced that it could be considered the place where she “usually works” or was “usually based”.

It was not a case – he noted – that frequently occurs “involving a pattern of work in which the worker is based in one state and works, on occasions, in a neighbouring state”.

Rather, it concerned an employment relationship that promoted offers of work in many different states with the benefit of visiting different parts of Australia while earning an income such that there was no “usual” base or place of work.

In such circumstances and where Atlas’ principal place of business was in Brisbane, Covill’s employment was connected with Queensland by application of s 113(3)(c), and her claim for damages should be allowed to proceed under the WCRA in the state’s courts.

He made the declaration accordingly.

Covill v WorkCover Queensland [2022] QSC 171 Applegarth J, 17 August 2022

source https://cartercapner.com.au/blog/everywhere-worker-gets-green-light-to-sue-in-queensland-for-nt-injury/

Wrongful imprisonment at roadside; police fail on Nuremberg defence

Richard Walker had driven from his home in Darra to the Sunshine Coast hospital to meet with the palliative care team to discuss his father’s rapidly declining health.

To settle his nerves after arriving early, he drove to a nearby service station on the Nicklin Way at Kawana to buy cigarettes.

On leaving the 7-11 servo, he drove north before doing a U-turn back towards the hospital.

That manoeuvre caught the attention of traffic police who – deeming it a “burnout” – pulled him over to impound his vehicle for the “hooning” offence.

His pleas to be allowed to return to the hospital while detained from 10:00 am until 11:20am were denied by the two constables while they completed the vehicle seizure paperwork.

Believing his father was only hours from death, he offered the police officers his car keys several times so he could leave, but they were refused.

While all this was happening on a Wednesday morning in September 2014, a heavy collision occurred just opposite the protagonists – involving three cars and a truck – on the northbound carriageway .

Because of its severity the officers were also required to take charge of that scene until another police crew arrived.

After being released, Walker returned to the hospital. His father was unable to communicate.  He died two days later.

The “hooning” charges were dismissed in the Magistrates Court.

In March 2018, he filed proceedings in the District Court against the State of Queensland seeking damages for malicious prosecution and wrongful imprisonment.

Those claims were rejected by a jury in August 2019.

Appealing the dismissal of the wrongful imprisonment claim, he contended the trial judge had failed to direct the jury that the officers had only been entitled to detain him “for the time reasonably necessary for the purpose of impounding the vehicle”.

The appeal judges agreed that his detention while they completed the paperwork for the seizure was not justified by the relevant provisions of the Police Powers and Responsibilities Act.

“Every unauthorised detention by one person of another person is a trespass and constitutes the tort of wrongful imprisonment,” observed Justice Walter Sofronoff.

Noting that the power to impound the vehicle and to require the driver to remain at the scene were serious interferences with personal freedoms, the appeal judges ruled such powers could only be exercised for the specific purpose to impound a vehicle and nothing else.

They concluded Walker had been wrongfully detained on the roadside from 10:20 am until 11:20 am and remitted the matter back to the District Court for assessment of damages.

When the matter came before Judge Michael Byrne, he noted the police officers mistakenly believed they had no discretion as to whether or not they should impound a vehicle unless there were “exceptional circumstances”.

“Both believed that they had done nothing wrong by acting as they had been trained, a variation on the so-called Nuremberg defence,” he observed.

His Honour accepted Walker had suffered hurt , distress and embarrassment while detained on the roadside in full view of passing motorists.

He agreed he was entitled to aggravated damages due to the officers’ failure to inform him – after their check call to the hospital – that his father’s death was not imminent, their failure to apologise, their insistence on him having committed an offence of which he had already been acquitted and their teasing of Walker that his actions had indirectly caused the later accident.

“Each of those types of conduct was, in my view, improper and unjustifiable, both singularly and in combination, and goes beyond the bounds of ordinary human fallibility”.

Although the period of wrongful imprisonment was relatively short, “it was a period of time which was particularly precious to the plaintiff and a period of time during which he was susceptible to experiencing considerable distress and upset,” Judge Byrne ruled.

Walker’s damages ask was $120,000 including $50,000 for exemplary damages and $40,000 for aggravated damages.

Having found substantially in Walker’s favour on all the factual and legal points, the court’s award was a mere $30,000 which was said to be inclusive of aggravated damages.

Walker v State of Queensland [2022] QDC 168 Byrne QC DCJ, 5 August 2022

source https://cartercapner.com.au/blog/wrongful-imprisonment-at-roadside-police-fail-on-nuremberg-defence/

Unwanted sexual touching for just “a few seconds” = > $200k damages

A claim for a sexual assault on a 16-yr-old youth “in about 1972” that produced a mild mental injury and no proven loss of income has resulted in an award of more than $200,000 in damages.

Arthur Alan (not his real name) claimed to have been sexually assaulted on several occasions by his employer Philip Doyle in connection with his duties as an usher at Doyle’s cinema at Kogarah in Sydney.

But it was only one of those occasions on which he based his claim for compensation for the resulting psychological injury.

That was an incident that occurred while he was taking a shower – at Doyle’s suggestion – on a detour to his unit when being driven home by Doyle after a work event.

On Alan’s account, Doyle made an unannounced entrance into the shower recess and commenced to masturbate him without consent “for a few seconds”.

Alan was scared and just stood there. He felt cornered with nowhere to go and responded: ‘I’m not doing any of this, I’m going.’

He left the apartment, walked to Cronulla station, caught a train home and had no further contact with Doyle.

As best as he was able to recall, this had occurred in late 1972 in spring or summer about a year after he had started work at the cinema.

After seeing news reports of Doyle’s arrest in 2009, Alan attended Cronulla police station to make a statement about the shower incident that a detective began to prepare. Alan did not however complete it because “he found it too stressful”.

It wasn’t until May 2021 that any injury compensation proceedings were filed in court.

Justice Nicholas Chen had no difficulty concluding that the shower event constituted “sexual misconduct” and therefore came within the definition of “sexual abuse” for which limitation period had been retrospectively abolished in March 2016.

Although Alan was only required to prove his case on the balance of probabilities, His Honour observed that – having regard to the gravity of the allegations of an event that occurred nearly 50 years ago – he was obliged to approach his uncorroborated testimony with extreme care.

That was so even where the court was entitled to draw an adverse inference due to Doyle’s failure to give evidence without any explanation for his absence.

The court closely examined the two other unwanted sexual touching events on a fully clothed Alan which were not raised to ground any claim for compensation but rather, to constitute “tendency” evidence of the defendant’s propensity to behave in such manner.

In Justice Chen’s view, evidence of the “car conduct event” and the “change room event” could not properly be categorised as tendency evidence but could be relied on “relationship evidence”.

The value of such evidence was – the judge explained – that it “tends to remove the implausibility that might otherwise attach to the plaintiff’s account of the ‘shower incident’; and it can be used as some evidence that the defendant was, attracted to the plaintiff and had a motive to act as he did”.

In his view that relationship evidence – particularly of the ‘car conduct event’– rendered Alan’s version more believable.

“I have taken this evidence into account in my assessment of where the probabilities lie”.

Alan’s claim that he had sustained PTSD was not supported by the psychiatrist he engaged due to the absence of any anxiety or depression and because he had been sleeping well and had good energy, concentration and memory levels.

Dr Nigel Prior considered the impairment to have been a mild alcohol use disorder and an intermittent “Other Specified Trauma and Stress or Related Disorder” that began from around the age of 17 or 18.

Alan also claimed that he had taken up cannabis and alcohol misuse due to the “shower incident” as a coping mechanism, a claim of which His Honour was not convinced.

The judge did though accept that erectile dysfunction, decreased libido and occasional nightmares and painful memories triggered by specific reminders were a consequence of the “shower incident” that had a “mild” impact upon him and his relationships.

For this Alan was awarded compensation – “at the upper end of what [was] reasonably available” – of $100,000 plus interest of $60,000.

The court rejected the assertion that the incident had affected his income earning capacity because Alan had been able to maintain full time employment and achieve success in his career.

That said, an amount of $30,000 was awarded to account for the chance that his mild psychological conditions could have prevented him from earning a higher income.

His claims for future loss of income and for aggravated damages were dismissed.

The total award came to $217,550.

AA v PD [2022] NSWSC 1039 Chen J, 5 August 2022 Read case

source https://cartercapner.com.au/blog/unwanted-sexual-touching-for-just-a-few-seconds-200k-damages/

Driver in head-on highway accident also responsible for collision 2km distant

At about 2pm on Sunday 17 August 2014, Lisa Collins was heading northwest in the direction of Canberra on the Kings Highway near Monga NSW.

She came around a bend in the road and was suddenly confronted with a line of stationary vehicles the last in line being just 60m ahead.

Swerving to avoid a collision with the rear-most vehicle, she mounted an embankment causing her car to overturn.

The vehicles ahead were stopped because the road was blocked from a head-on highway accident some 2 kms to the North that had occurred about 45 min earlier.

Collins decided to file an injury compensation lawsuit against the third-party insurer of the vehicle at fault for the earlier collision for having negligently crossed in front of oncoming traffic, to the wrong side of the highway.

Damages were agreed at $250,000 but the insurer contended it should pay nothing because the insured driver owed no duty of care.

Even had such a duty been owed, the insurer argued the duty had not been breached because the risk of harm – ie a further accident 2 km away – was “insignificant”.

Judge Alister Abadee agreed and dismissed the claim in the NSW District Court in August 2021.

He also ruled that the claim failed because Collins’ injuries were not the result of a “dangerous situation caused by the driving of the vehicle” as required by the relevant provision of the NSW Motor Accidents Compensation Act.

Collins appealed.

Justice Basten in delivering the lead judgment observed that a negligent driver who causes a collision on a regional highway creates a risk of injury to other road users even if they weren’t involved in the initial collision.

In his view, the distance in time and space between the insured driver’s collision and the Ms Collin’s accident was not so great as to put her beyond the class of road users to whom such duty was owed.

“The vehicles immediately behind both of the cars involved in the collision were put at risk from the sudden obstacle in their path. So, potentially, were the vehicles behind those, and so on down the line”.

In reversing the trial judge’s finding that the risk of harm was insignificant, the appeal judges observed that the seriousness of a potentially adverse outcome had to be considered.

The consequential risks to other road users arising from a major collision on a two-lane highway were in this instance, so held the court, “not insignificant” and were “foreseeable”.

“A reasonable person in the insured driver’s position would have taken precautions to avoid the collision,” they concluded.

Those precautions were the same precautions he was required to take in order to avoid causing the original collision.

Having admitted fault for the head-on highway accident, it followed the driver in the first collision was – in these circumstances – at fault for the second one.

They also ruled that Ms Collins’ accident had indeed arisen from a “dangerous situation” created by the line of stationary vehicles that following cars might come upon very suddenly.

“Depending on the terrain, some drivers may have had a clear view of the obstacle in front of them. Others would not. Those who did not were put in danger”.

They assessed Collins 20% contributorily negligent as compared to the trial judge’s apportionment of 65%.

Collins v Insurance Australia Ltd [2022] NSWCA 135 Meagher JA Kirk JA Basten AJA, 2 August 2022 Read case

source https://cartercapner.com.au/blog/driver-in-head-on-highway-accident-also-responsible-for-collision-2km-distant/