WCQ whipped on compliance ask for NOCD particulars of negligence

Are “high level” allegations – without particulars of the components of alleged negligence and causation pertaining to an injury – sufficient to meet the requirements of a compliant workplace injury Notice of Claim for Damages?

This question recently arose for determination by Justice Graeme Crow in the Supreme Court at Rockhampton in relation to a prison officer’s injury at the Maryborough Correctional Centre.

About 18 months after starting there, David Graham was seconded in October 2019 into the correctional response team whose role was to be first responders to critical and acute prisoner situations.

From April 2020 he experienced psychiatric symptoms yet continued to work in the unit. Symptoms worsened and he eventually ceased work altogether in March 2022.

A Notice of Claim for Damages was provided to WorkCover in May 2022 in respect of an over period of time injury expressed to relate to the period from 1 November 2019 to 1 December 2020.

Graham’s answer to question 40 – which calls for a description of the details of the event resulting in the injury – merely noted that he had received inadequate training for his role and that there was no rotation in and out of the team.

The NOCD was accompanied by a report from psychiatrist Joe Mathew who referenced some of the violent episodes to which Graham had been exposed and the regular confrontation from prisoners with threats to his life and his family.

WorkCover refused to comply the notice, demanding that the answer to question 40 specify particulars of the “nature, duration and intensity” of the prison episodes he alleged to have contributed to his PTSD.

The claimant though had – by reason of impaired memory associated with his condition – difficulty with his recall and sought to avoid its potential aggravating by being required to record each and every incident from memory.

He offered to provide the particulars after the correctional centre disclosed the records of the incidents he attended in his role but insisted – regardless – his answer complied with the requirements of Workers’ Compensation and Rehabilitation Act section 279.

Solicitors for WCQ on the other hand insisted on what they declared was a claimant’s obligation under reg 120 to fully particularise all elements of the claim.

To resolve the stalemate, Graham filed an originating application seeking a declaration that he has complied with WCRA s 275 in September 2022.

In considering the contest, Justice Crow observed that the reg 120 requirement that the claimant provide his or her “description of the facts and circumstances surrounding the injury” was a substantially lesser obligation that that required under an earlier iteration of the regime in part because the details required were of the “injury” as opposed to the “event”.

The obligation to provide “full particulars of the negligence alleged” was though the same under reg 120 as it otherwise been.

In deciding whether sufficient particulars of negligence had been provided, his honour had recourse the High Court of Australia’s recent consideration of an employer’s duty to staff whose role necessitated exposure to extreme violence or trauma.

The HCA held in that case that “in certain cases an employee is able to demonstrate the very nature of the role taken by the employee carried with it an inherent and obvious risk of psychiatric harm”.

It had noted the employer’s duty in in such case extended to providing intensive training and rotations in and out of the unit, both of which had been particularised by Graham in his answer.

Against that background and in the context the prolonged exposure over the period he had specified, the particulars of negligence were – according to Justice Crow – sufficient.

“The test is not to require a properly particularised statement of claim, but rather to satisfy the requirement of reg 120,” he ruled it making the next oration that the NOCD was compliant.

Graham v State of Queensland [2022] QSC 228 Crow J, 20 October 2022

source https://cartercapner.com.au/blog/wcq-whipped-on-compliance-demands-for-nocd-particulars-of-negligence/

DV outreach worker awarded $1.25 mil for assault by client’s husband

A worker who is harmed a consequence of their employment but at a place totally unconnected with it can often recover compensation for the resulting injury.

That was the contention of Tracey Bell – a family violence outreach worker – who was attacked in March 2013 by the partner of a client to whom she was providing counselling as she was getting out of her car to visit her GP.

Tracey had started with Nexus Primary Health at Broadford in central Victoria in 2008 as a receptionist and then in community development and bushfire case management.
Her role of family violence outreach worker to which she was appointed in 2010 required home visits to clients – mostly referred by Victoria Police -and to provide support at other locations including at the local court.

Tracey suffered severe distress from the vicious assault and the perpetrator’s warning: “You stay away from my wife. Don’t contact her again or I’ll fucking kill you”.

That incident was followed by her receipt of a threatening letter in May and a foreboding “Christmas box” in December 2013 – most likely both from the original assailant – that caused a great deal of distress.

A fourth incident – a brick thrown through the window of her home – occurred in early January 2014.

She and her family moved from Broadford (population 4,076) in September 2014 as she ‘didn’t feel safe’ and could not stay at home by herself during the day.

The episodes produced severe psychiatric symptoms, several inpatient admissions, several courses of electroconvulsive therapy and two admissions to a specialist PTSD program at The Austin Hospital.

Although Peter Wales – the husband of Tracey’s patient Diane Wales – was a suspect, police could not identify the assailant.

Proceedings were commenced against her employer in 2019 alleging it ought to have removed her from the Wales given his known propensity for violence and the threats he had made against Tracey.

Nexus ultimately accepted that her severe psychiatric symptoms rendered her unable to work and had “destroyed her life”.

It denied though that it owed any duty any duty to mitigate against the “risk posed by the criminal offending of an unknown person” and did not concede that Peter Wales was indeed the perpetrator.

The dispute came before Justice Stephen O’Meara in the Supreme Court in Melbourne in September 2022.

He accepted Tracey’s account of all incidents and was “comfortably satisfied on the balance of probabilities”, that Wales had perpetrated the March 2013 assault.

Tracey contended in relation to liability that in designing and enforcing a safe system of work, Nexus had a duty to take into account the potential risks to the safety of its employees and to anticipate safety risks posed by their work.

The judge agreed noting that whether or not such duty extended beyond the employer’s workplace depended on the nature and immediacy of the risk; the extent to which it could be addressed; the employer’s knowledge and the employee’s vulnerability.

The employer was certainly aware of the risk.

In Justice O’Meara’s view, there was “no doubt that the work of a family violence outreach worker in the Broadford district in 2010 to 2013 carried a risk that an angry and dissatisfied husband, partner or family member might physically assault a worker”.

The risk was “present, palpable and quite real”.

Indeed, not long before the assault, staff were cautioned after a worker was attacked in the staff car park after being mistaken for a family violence outreach worker to ‘be vigilant and keep your eyes open’.

Regular monitoring of outreach workers and their ‘files’ – as provided for Nexus’s system of work – as well as intervention by the coordinator to alter her file allocation ‘if required’ was wanting.

Tracey had reported to the Nexus CEO threats to her life conveyed by Diane Wales that were said to have been made by her husband while he was raping her in October 2011.

She had also reported the need for a police escort to be protected from Mr Wales aggression when entering and leaving the local Court.

“The whole team’ had been aware of the problematic case that I had with Mr Wales,” she swore.

Despite these reports no one had taken the threat seriously, preferring instead to laugh him off as simply “a pest”.

The court was satisfied on the basis of that evidence that employer had breached its duty of care by failing to enforce the system of work it had designed.

But even in the face of that finding, Nexus contended it should not be liable because even if Tracey had been taken off the ‘file’, it was a matter of speculation as to whether or not the assault would have occurred in any event.

Not so said the court.

Had the support role to Diane Wales been reallocated to another person, “it is more likely than not that the incident would have been avoided” and the plaintiff’s injury loss and damage would not have occurred.

Tracey’s victory was complete. General damages were assessed at $375; past loss of income at $496k; future loss of income at $468k, making a total award of $1.245 million.

Bell, Tracey Lee v Nexus Primary Health [2022] VSC 605 O’Meara J, 13 October 2022

source https://cartercapner.com.au/blog/dv-outreach-worker-awarded-1-25-mil-for-assault-by-clients-husband/

Appeal court tosses “she’ll be right” ruling; future economic loss upped x 3

A ruling that a seriously injured not-at-fault driver was capable of a return to work following a road accident trial has been rejected  on appeal as having been unsupported even on the evidence of the most optimistic medical specialist called by Allianz in opposition to the claim.

Justice Paul Freeburn’s finding in October 2021 that Kate Sutton would recover and gradually return to work by the end of 2025 “was without evidential basis and against all of the evidence” the appeal judges ruled in relation to the assessment of future economic loss.

The primary judge had preferred the conclusions of psychiatrist John Chalk over those of his colleague Trevor Lotz – who treated plaintiff Karen Sutton – because of a conflict he perceived between “saying the right thing for the patient” and giving objective testimony.

But even Dr Chalk gave no support for the conclusion that within four years after trial, she would have no permanent impairment.

On appeal Justice John Bond – in giving the lead judgement of the court – also rejected the trial judge’s finding that Sutton would lose out income for only one day/week because uninjured, she would only have worked on only 2 days.

The medical evidence – at worst for the plaintiff – was that she had capacity for at least 20 hours and the plaintiff swore she would otherwise have worked around 40 hours.

“The primary judge’s allowance of only two days a week going forward was an underassessment of the appellant’s prospects of work capacity,” he observed.

As a result, the weekly net future loss attributed to the plaintiff was increased from $240 to $600 and its duration extended to cover the 17 years of her remaining working life as opposed to the four years allowed by Justice Freeburn.

The net result was future economic loss being allowed at $3o7k rather than the $91k assessed at trial.

The appeal court maintained the 15% vicissitudes adjustment for future loss of income as had been adopted at trial.

“The appellant ought to be assessed as having a much larger discount for vicissitudes of life then the statistical 5.91% as she was not in stable long term employment prior to the accident,” Justice Crow reflected.

Appeals against many other assumptions and findings made by the trial judge – including those estimated for past economic loss and his preference for the evidence of Dr Chalk over that of Dr Lotz – were rejected.

“The views formed about the relative merits of the expert opinion reflect a careful and balanced assessment, plainly informed by his honour’s impressions of both witnesses and of the appellant,” Justice Bond noted.

Sutton also appealed the trial judge’s interpretation of Civil Liability Act s 55(3) – regarding when and how global sums should be assessed – as having been contrary to authority.

Given the escalation in damages it had allowed, the appeal court thought this unnecessary to consider.

“I would leave consideration of the primary judge’s analysis of s 55 and the related case law to an appeal in which it was necessary to consider those matters,” Justice Bond wrote.

Sutton did have an additional win on indemnity costs.

Neither did the court decide whether the trial judge had miscarried his discretion by refusing indemnity costs to Sutton even though she had offered to accept around $500 less than the $314k he ordered be paid.

But as she “must now be regarded as having obtained a result significantly more favourable than the amount of the offer she made, the discretion should be re-exercised by this court” in her favour.

The increase in the award from $314k to $544k, with an award of indemnity costs is a major improvement for the plaintiff and equally painful blow to CTP insurer Allianz.

 

source https://cartercapner.com.au/blog/appeal-court-tosses-shell-be-right-ruling-future-economic-loss-upped-x-3/

Can’t say for sure which van: Nominal Defendant pays $844k due misidentification

Can a motor accident injury claim be conducted against the vehicle suspected to be at fault for an accident as well as the nominal defendant as insurance against the vehicle’s misidentification?

Consider the case of motorcyclist Armin Damirdjian who braked heavily to avoid a parked van that pulled out from his left into his path in Fairfield Heights in Sydney’s west.

Damirdjian’s wheels locked, causing him to lose control of the motorcycle and be thrown on to the road and seriously injured.

That was in October 2011.

Police issued negligent driving charges against Damirdjian who denied in those proceedings that he had been speeding the time, but his evidence was not accepted.

He filed injury compensation proceedings against the Nominal Defendant in 2014 after having been unable to identify the owner of the white van that he claimed was at fault.

His daughter – who was told of the accident by her father’s friend when she was at home alone and went immediately into shock – also sued for nervous shock.

During the trial which began over 6 days in August 2017, evidence emerged which suggested the possible identity of the white van and its owner.

The proceedings were adjourned until Sam Zaya – who resided at 17A Nile Street near where the accident occurred – was joined as the second defendant.

That was on the strength of information from Pauline Douglas – who resided at No 17 – about a van meeting the at-fault vehicle’s description having often been parked in the street and who claimed to have been an eye-witness and saw the van perform the U-turn that caused the calamity.

Zaya had indeed lived at No 17A and had owned a white Toyota Hi Ace 100 Series van at the time of the accident. He and his employees used the van in the conduct of his cleaning business and he admitted he did frequently conduct a U-turn in the street.

Zaya denied though that he had been the driver and asserted that both of his neighbours owned vans, one of which – as verified by motor vehicle registry records he produced – was white in colour.

He did not deny that it might have been one of his employees who had driven the van on the relevant day.

The trial resumed in April 2018 but evidence was not concluded until March 2021, a total of a further 22 days.

Judge Leonard Levy – in reliance upon Mrs Douglas’ evidence – found on the balance of probabilities that the white van involved in the accident belonged to Zaya and was being driven by an employee.

He ordered his CTP insurer to pay compensation of $375k to the motorcycle rider and $468k to his daughter.

Their claims against the Nominal Defendant were dismissed.

The CTP insurer appealed. The Nominal Defendant filed a notice of contention alleging that the accident had been caused by the motorcycle – because Damirdjian was riding at an excessive speed – rather than the van.

On appeal, Justice John Griffiths in delivering the lead judgment of the court observed that Pauline Douglas’s evidence was “both internally inconsistent and inconsistent with other evidence”.

She had given differing accounts as to where she was when the accident had occurred and whether or not she had in fact seen the van execute the U-turn.

He concluded that the finding that Zaya was liable as the owner of the white van was erroneous because the primary judge failed to give “cumulative effect” to the several evidentiary matters which cast strong doubt on the reliability of Mrs Douglas’ evidence.

Critically, her evidence that the van was still present and inferentially in use by Mr Zaya in 2017 conflicted with him having ceased to live there in 2013.

The primary judge’s disregard of that mistake as merely “involving a conflation in the time” was flawed – so ruled Justice Griffiths – and contrary to a more compelling inference namely that the van she observed in October 2011 and still parked there in August 2017, was in fact an altogether different van.

In his view, the evidence insufficiently identified the at-fault vehicle so as to absolve the Nominal Defendant of liability.

The appeal court upheld the finding that the accident had been caused by an unidentified white van, ie not that of Mr Zaya and that Damirdjian should not be attributed any contributory negligence because he had been – as he claimed – travelling at, if not slightly under, 50 kph at the time of the accident.

The Nominal Defendant now must pay the damages assessed by the Primary judge, in lieu of the CTP insurer of Mr Zaya’s vehicle.

Zaya v Damirdjian [2022] NSWCA 203 Bell CJ Gleeson JA Griffiths AJA, 11 October 2022 Read case

source https://cartercapner.com.au/blog/cant-say-which-van-at-fault-nominal-defendant-pays-844k-due-misidentification/