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/

Major consequences follow court’s rebuff of WCQ’s stroke compensation claim denial

WorkCover is required to accept or reject an application for workers compensation within 20 business days of receiving a worker’s application.

That time constraint has led to a practice of approving some applications while awaiting further information and in the knowledge it can revisit the decision and terminate benefits if it turns out the application was not one for acceptance.

That practice is likely to be turned on its head by a recent Supreme Court decision.

The contest that came before Justice Peter Applegarth concerned an application by Chang Mo Yang who had suffered a stroke at work said to be as a result of workplace stress.

WCQ rejected the application but on review, the Workers Compensation Regulator – who preferred the expert opinion of a doctor who had examined the applicant to that one who had never laid eyes on him – the application was accepted.

WCQ then obtained the opinion of another medical practitioner who stated “I do not think the cerebral haemorrhage is secondary to hypertension caused by work stress”.

That led to a notification two days later by the claims officer that “in light of new medical information the decision has been made to cease your claim”. The new advice was that the stroke had been due to “pre-existing untreated hypertension”.

Chang promptly filed an application under the Judicial Review Act for a review of that decision, contending that WCQ had commissioned the third report to bulldoze the Regulator’s decision.

It could not in those circumstances – he argued – rely on WCRA s 168 which allows WorkCover to “review a person’s entitlement to compensation” if it considers their “entitlement to compensation may have changed.”

The section was not intended – he asserted – to allow the insurer to have a second crack at assembling evidence to defeat the claim ab initio.

WCQ essentially agreed that it had relied on the further report not so much for evidence that his status had changed but to support its view that the initial claim should never have been accepted in the first place.

It justified its position on a broad interpretation of s 168: that it had power to reassess as to whether an applicant ever met the statutory threshold at any time if there has been a “change in circumstances”.

His Honour noted the difficulty with that submission was that s 168 is not pre-conditioned upon a “change in circumstances”.

“Permitting an insurer to change its mind in the light of further information or further reflection” may Justice Applegarth observed, “introduce a lamentable measure of uncertainty and disturb the welfare of injured persons”.

After an intricate examination of the pros and cons of both sides of the argument, he concluded WCQ did not have power under s 168 to revisit earlier decisions on new evidence it receives.

Rather, the occasional acceptance of a claim that subsequently turned out to be one for rejection, “is a price that the legislature seemingly accepts in the interest of the efficient administration of the scheme for the greater good of the overwhelming majority of claimants”.

The respondent’s decision of June 2021 to terminate Chang’s entitlement to workers’ compensation was thus set aside.

Based on this decision, there will be many instances over many years of WCQ having wrongly relied upon s 168 to re-open an accepted claim terminate to workers’ compensation benefits.

The sting in the tail is the court’s clarification that s 168’s purpose is to allow WCQ to terminate benefits if it considers a worker’s entitlement has changed, regardless of whether its view is correct.

So in the case of a worker who has undergone remedial surgery, WCQ does not have to wait months for an assessment of the success or failure of the surgery but rather it can cease benefits immediately based on its expectation of a good result.

Yang v WorkCover Queensland [2021] QSC 274 Applegarth J, 22 October 2021

source https://cartercapner.com.au/blog/courts-rebuff-of-workcovers-2nd-crack-at-stroke-compensation-claim-denial-has-major-consequences/

Aspiring airline pilot seeks $7 mil in damages for child sexual assault

The victim of a sexual assault as a youth by the owner of a suburban theatre in 1985 has sought damages for the resulting psychiatric injury he claimed prevented him becoming an airline pilot and caused his life to “take a completely different turn”.

Then aged 16, Paul Miles – a pseudonym offered by the court – worked as a casual lighting operator at the Kogarah Mecca Cinema owned and operated by Philip Doyle.

Around the time of the August 1985 school holidays Miles – under the influence of alcohol supplied to him by Doyle – accepted an invitation from the cinema owner to stay overnight at his unit where it became clear he was expected to engage in sex acts.

Other than mentioning it to another boy, Miles told no one what had occurred and the incident was never spoken of between the two participants.

He later reported the incidents to police. Doyle was convicted of a series of sexual assaults  and was serving a sentence when the latter’s civil injury compensation claim came before Justice Richard Cavanagh in the NSW Supreme Court in July.

Notwithstanding his denial of liability in Miles’ lawsuit, the court was satisfied Doyle had behaved towards the youth in the way that had been recounted in evidence.

“The plaintiff was given alcohol by the defendant who then took advantage of him in his intoxicated state,” Justice Cavanagh concluded. “Whist he did not physically resist and temporarily froze before protesting, he did not consent to the defendant sexually touching him”.

His Honour then set about a “challenging” assessment of what damages Miles was entitled to be awarded.

“Challenging” because Miles – in his view and contrary to the conclusions of both forensic psychiatrists – had not developed his psychiatric illness until many years after the actual assault all the time keeping the incident hidden from the world around him.

Having completed Year 12 in 1986 in Lismore with good grades, he commenced officer training at Duntroon in Canberra.

He left there though in May 1987 and with him left his hopes of becoming a military pilot and then a highly paid airline pilot 20 or so years later in receipt of a military pension.

In fact he struggled to hold down a job and – although working most of the time – his work was short term, part-time or only for brief periods.

His only commitment to tertiary education was to complete a Bachelor of Media at Southern Cross University in 2009.

Remarkably though, over the 25 years since the assault, Miles occasional visits to doctors left no record of treatment for psychological issues.

All that changed once the Doyle criminal prosecution began in 2012. His engagement in that process brought on depression, anxiety and PTSD for which Miles received a disability support pension.

Justice Cavanagh rejected the opinions of psychiatrists Alex Apler and John Baker that the youth had suffered from a psychological illness since almost immediately after the assaults.

“Neither the contemporaneous records nor the plaintiff’s evidence support the assumptions and conclusions of fact which they have made”.

Rather his symptoms increased or accumulated over time – in His Honour’s view – possibly because for many years he declined treatment and declined antidepressant medication.

He was satisfied that Miles’ incapacity to work from about 2013 – in the absence of evidence from Doyle that it was the result of other factors – was a result of the psychiatric conditions caused by the assault.

He rejected the foregone airline career theory.

“In my view, the plaintiff has not established that the effect of the sexual assaults was that he was unable to stay in the military and become a commercial pilot”.

Justice Cavanagh thus declined Miles’ $7 mil ask. Rather he allowed a past loss of income at the rate of average weekly earnings, namely $1.1k/week for eight years in the sum of $457k.

For the future, he merely allowed a ‘buffer’ of $200k and assessed general damages – on a common law basis as is allowed in NSW for sexual assault – at a further $200k.

Aggravated damages – to account for the long-term burden of shame, embarrassment and indignation over and above the injury itself – were awarded at $35k making up a total damages award of $1.273 million.

Miles v Doyle (No 2) [2021] NSWSC 1312 Cavanagh J, 15 October 2021

source https://cartercapner.com.au/blog/court-awards-1-27-mil-for-aspiring-airline-pilot-child-sexual-assault-at-cinema/

Economic loss claim slaughtered: “capable and intelligent” manager likely only to earn $1.2k/week

A mother with an impressive employment history and a string of occupational qualifications has been ruled by the Supreme Court as likely only to have earned average wages but for the serious injuries she sustained in a motor accident at Mudgeeraba in February 2015.

Kate Sutton had completed year 12 and then worked for Cue Design progressing to store manager after 5 years. She then worked for Jeans West as a manager for three years and then in a car dealership as a finance manager for two years.

Her four year stint in real estate after gaining her real estate licence was paused to raise her two sons born in 2005 and 2010.

The injuries she sustained in the 2015 accident resulted from the impact of a rear end accident that was so heavy, both vehicles were written off.

Allianz – as insurer for at fault driver Lauren Hunter – admitted liability for the accident but disputed the extent of Kate’s damages for the resulting psychological injury when the matter came before Justice Paul Freeburn in September.

Psychiatrists Alfred Chung, Jon Chalk and Trevor Lotz each offered differing opinions. Dr Chalk concluded Kate could return to work for up to 20 hours per week. Dr Lotz – her treating psychiatrist who she saw monthly – considered her “a prisoner in own home” who he believed to be unemployable.

Observing that a treating psychiatrist has a conflict between “saying the right thing for the patient” and giving objective expert evidence, the judge gave greater weight to the views of Dr Chalk whose views were consistent with his own impression of Ms Sutton as “impressive”, “capable and intelligent”.

The court allowed an ISV of 13, yielding general damages of $21k.

Kate’s loss of income case relied on the formulation in a report from forensic accountant Michael Lee which was found to be based on unproved assumptions as to roles she would likely have taken on and the income she would have received, but for the accident.

“Mr Lee has no particular expertise in the labour market or in education, training and expertise for particular positions,” Justice Freeburn ruled. And even if he did, he did not analyse “Ms Suttton’s qualifications, expertise and experience” as against those required for the positions on which he had based his calculations.

With the report unable to be relied on, His Honour was invited to make a “global award”, an approach that he considered inconsistent with the Civil Liability Act s 55 obligation that requires a court to state the assumptions on which an award is based and the methodology used.

“It is doubtful that the court is entitled to adopt a global approach to economic loss,” he observed before embarking on a longhand assessment based on findings that Kate would have returned to work as an employee on a part-time basis earning the average after-tax weekly wage of $1.2k/week.

His Honour rejected the submission she would likely have been recruited as “business development manager” earning a far higher income because the qualifications for such a role – which she did not possess – included a degree in finance or law “with working knowledge of the stock market and takeover regulations”.

Past economic loss of $240/day for 2-3 days/week for 5 years was awarded at $212k.

Future loss of income was assessed at $91k over four years to 2025 by which time she was assumed – according to Dr Chalk’s evidence of likely achieving a “relative recovery” – to be able to resume full-time work. That sum was reduced by 15% for contingencies.

The gratuitous care claim was the next to come under the judge’s scrutiny.

Care was claimed for 442 hours at 17 hrs/week for the first 26 weeks, such information being derived from a “guesstimation” compiled by her husband two years after the accident.

The guesstimation indicated all of the household tasks he performed for the family of four with 25% of the total said to have been performed for the benefit of the plaintiff.

His Honour was not satisfied that such methodology was sufficiently precise. Neither did he consider a claim for 17 hours/week for “watching her medication” to be realistic or claimable as a “service” in the absence of any medical evidence that observation of that nature was required to be performed.

He declined to accept the invitation to adjust the figure claimed downwards, rather ruling that the legislative requirement in CLA s 59 not having been met, no award for gratuitous services – past or future – could be made.

The resulting damages award totalled $314k.

Sutton v Hunter [2021] QSC 249 Freeburn J, 7 October 2021

source https://cartercapner.com.au/blog/economic-loss-claim-slaughtered-capable-and-intelligent-manager-likely-only-to-earn-1-2k-week/