Overworked council man wins $1.3 mil for “flawed” performance improvement process

An overworked section head of the Cairns Regional Council who was blamed for financial errors and subjected to an unwarranted performance improvement process has won substantial damages after a 4-week trial, for the psychological injury he sustained as a result.

Paul Ackers – a supervisor of the council’s payroll unit – had a pre-existing depressive illness which worsened as a result of its investigation of a union complaint against him and an additional 12 hrs of work per week following the loss of three experienced staff in March and April 2015.

Absent sufficient adequately skilled staff – who had been resentful at changes he had introduced – he bore an unusually demanding workload and as one would expect, a higher than usual number of errors were made.

Responsibility for the mistakes “was pinned on Mr Ackers” rather than on the “extraordinary” work pressure under which he had been put with the council making it clear to him that a consequence of the performance improvement review was the loss of his job.

He took sick leave in September 2015 and has not returned to work due to the condition which manifests physically in a tremor to his right forearm and hand and a severe stutter.

Ackers’ lawsuit for injury compensation damages was filed in April 2018 but so suspicious their former employee was malingering, the council put him under video surveillance the footage from which was “not materially inconsistent” with the worker’s own account.

When the matter came before him in February and for two further weeks in July, Justice Jim Henry observed that while employers were entitled to “assume normal fortitude on the part of an employee”, a greater degree of care may be required when an employer imposes an “abnormally stressful workload” or where an employee is “exhibiting signs of psychological stress”.

He concluded the long hours “while extremely demanding”, were not such as to “alone make psychiatric injury to a person of ordinary fortitude reasonably foreseeable”.

His Honour was also satisfied the union complaint had to be addressed and the process the council employed was reasonable. Ackers had however – to the council’s knowledge – been left psychologically vulnerable by the investigation through which he had been put.

Recognising that a performance improvement process is a tool of modern management, Justice Henry rejected the council’s contention it was used in this case as “some sort of benign exercise in improving the performance generally of the unit”.

Rather it was in his opinion, conducted under the “flawed and unfair” premise that Ackers was responsible for the errors complained of whereas in truth they “had been made inevitable by prolonged inadequate staffing”.

For that reason Justice Henry considered the council should bear responsibility for the resulting injury to the 51-yr-old worker.

“A person of greater fortitude might have coped with that treatment,” His Honour observed. “But council knew Mr Ackers was already in psychological distress by this time” in June 2015, before the performance improvement process began in July.

“The accumulation of corporate knowledge of the workload [and] of signs Mr Ackers exhibited of psychological distress” made the risk of a serious psychological injury reasonably foreseeable”.

He ruled the council was in breach of its duty of care which “was causative of a major depressive illness”.

Council must pay the damages assessed at $1.276 mil less advances made by way of statutory workers’ compensation.

Ackers v Cairns Regional Council [2021] QSC 342 Henry J, 15 December 2021

source https://cartercapner.com.au/blog/overworked-council-man-wins-1-3-mil-for-flawed-performance-improvement-process/

Court awards tourist $2 mil for pedestrian accident; $900k for replacement limbs

A German holiday maker struck by a car on a footpath when its driver lost control on a Noosa Heads roundabout has been awarded over $2 mil in injury compensation damages by the Supreme Court in Brisbane.

The accident in May 2014 inflicted severe injuries on the then 24-yr-old Vincent Bosk, including serious fractures to all limbs which resulted in an immediate below-knee amputation of his left leg on arrival at Nambour Hospital.

Bosk was repatriated to Germany about seven weeks after the accident for inpatient rehabilitation, further surgery and “the difficult process of fitting and repeatedly refitting a lower limb prosthesis”.

He had completed his undergraduate economics degree in April 2014 before flying to Queensland for a five month working holiday before starting a master’s degree with a view to pursuing a career in international sports management.

He eventually obtained employment – after many rejected job applications – as a sports manager for European football players in October 2018.

QBE Insurance – as CTP insurer for the at-fault driver – did not dispute liability for motor vehicle accident damages and agreed many of the amounts it was called on to pay.

It nevertheless put Bosk to proof on the issues of economic loss and the cost of prosthetics, domestic aids and in-home equipment.

When the damages case came before her in November, Justice Elizabeth Wilson decided she should give judgment for past and future economic loss – as well as future prosthetic costs – in Euros because an award in that currency “best expresses the loss the plaintiff is likely to incur”.

Bosk – who Her Honour considered to be “a promising young man” – commissioned a report from orthopaedic surgeon David Morgan while QBE engaged his colleague Peter Boys to provide a countervailing opinion.

The orthopedists and psychiatrists – Eric De Leacy and John Chalk – largely concurred in the joint reports they produced leaving the most significant difference in opinions being those of occupational therapists Stephen Hoey and Xavier Zietek who disagreed about the impact of the plaintiff’s injuries on his future earning capacity .

Zietek on the one hand considered that Bosk could continue in his sports management occupation. Hoey – who referenced the requirement that he travel through Europe for two days at a time each month – thought he was unfit, due to anxiety and the physical demands it imposed, for any occupation that required travel.

Her Honour assessed the appropriate loss of future earning capacity at 35% ie, €245 net per week resulting in an award of €182k for future economic loss over his entire working life.

As for loss of income to trial Bosk contended – with the support of forensic accountant Michael Lee – argued for damages of €108k based on what he would have expected to earn as an industrial engineer.

Justice Wilson rejected Lee’s methodology and awarded instead, €75k.

The most notable feature of the assessment was Her Honour’s €569k award – based on the report of master orthotist, Olaf Gawron – for the cost of replacing and maintaining prosthetic limbs.

Gawron, of German orthopaedic technology company Pohlig, had been involved in managing the Bosk’s prostheses since 2015.

QBE opposed Gawron’s recommendation that his patient should be supplied sports and cosmetic limbs and contended he should make do with everyday artificial limbs for all pursuits.

That argument was dismissed with Her Honour finding “it is more likely than not that the plaintiff would use both cosmetic and sports prostheses” as well as those of the everyday and waterproof variety.

The sum awarded included the cost of replacement of each variety of the artificial limbs every four years and a €40k allowance “for the possibility of future technological innovation” over Bosk’s lifetime.

QBE scored some success in defeating Bosk’s ask – on the othotist’s recommendation – that the “technological innovation” allowance should be €50k every three years to account for the increasing cost of improved prosthetics in the future because Her Honour thought the submission was unsupported by evidence as to the likelihood of such improvements occurring.

The total award was AUD$624k and €871k.

Bosk v Burgess & Anor [2021] QSC 338 Wilson J, 14 December 2021

source https://cartercapner.com.au/blog/court-awards-tourist-2-mil-for-pedestrian-accident-900k-for-replacement-limbs/

Court awards $2 mil for German tourist pedestrian accident; $900k for replacement limbs

A German holiday maker struck by a car on a footpath when its driver lost control on a Noosa Heads roundabout has been awarded over $2 mil in injury compensation damages by the Supreme Court in Brisbane.

The accident in May 2014 inflicted severe injuries on the then 24-yr-old Vincent Bosk, including serious fractures to all limbs which resulted in an immediate below-knee amputation of his left leg on arrival at Nambour Hospital.

Bosk was repatriated to Germany about seven weeks after the accident for inpatient rehabilitation, further surgery and “the difficult process of fitting and repeatedly refitting a lower limb prosthesis”.

Noosa in Queensland Australia.

He had completed his undergraduate economics degree in April 2014 before to Australia where he intended to remain for around five months before starting a master’s degree with a view to pursuing a career in international sports management.

In October 2018 – after many rejected job applications – he eventually obtained employment as a sports manager for soccer players.

QBE Insurance as CTP insurer for the at-fault driver did not dispute liability for motor vehicle accident damages and agreed many of the amounts it was called on to pay.

It nevertheless put Bosk to proof on the issues of economic loss and the cost of prosthetics, domestic aids and in-home equipment.

Justice Elizabeth Wilson observed when the damages case came before her in November that she should give judgment for past and future economic loss – as well as future prosthetic costs – in Euros because an award in that currency “best expresses the loss the plaintiff is likely to incur”.

Bosk – who Her Honour considered to be “a promising young man” – commissioned a report from orthopaedic surgeon David Morgan while QBE engaged his colleague Peter Boys to provide a countervailing opinion.

The most significant medical contest arose however from the differing opinions about the impact of the plaintiff’s injuries on his future earning capacity of occupational therapists Stephen Hoey and Xavier Zietek.

Zietek on the one hand considered that he could continue in his sports management occupation while Hoey – who noted Bosk was required to travel through Europe for two days at a time each month – thought he was unfit for any occupation that required travel because of the anxiety and physical demands it imposed upon him.

Her Honour assessed the appropriate loss of future earning capacity was 35% ie, €245 net per week resulting in an award of €182k for future economic loss over his entire working life.

As for loss of income to trial Bosk contended – with the support of forensic accountant Michael Lee – argued for damages of €108k based on what he would have expected to earn as an industrial engineer.

Justice Wilson rejected Lee’s methodology and awarded instead, €75k.

The most notable feature of the assessment was Her Honour’s award – based on the report of master orthotist, Olaf Gawron – of €529k for the cost of replacing and maintaining prosthetic limbs.

Gawron of German orthopaedic technology company Pohlig, had been involved in managing the Bosk’s prostheses since 2015.

QBE opposed Gawron’s recommendation that his patient should be supplied  sports and cosmetic limbs and contended he should make do with everyday artificial limbs for all purposes.

That argument was dismissed with Her Honour finding “it is more likely than not that the plaintiff would use both cosmetic and sports prostheses” as well as those of the everyday and waterproof variety.

The sum awarded included the cost of replacement of each variety of the artificial limbs every four years.

An allowance of €50k every three years for “technological innovation” ie improved but more expensive prosthetics, was though rejected by the court with a mere €40k allowed ”for the possibility of future technological innovation” over Bosk’s lifetime.

The total award was AUD$624k and €871k.

Bosk v Burgess & Anor [2021] QSC 338 Wilson J, 14 December 2021

source https://cartercapner.com.au/blog/court-awards-2-mil-for-german-tourist-pedestrian-accident-900k-for-replacement-limbs/

Chance & extent of future eco loss “low”: labourer wins $70k global award

An appeal court has overturned a ruling that a labourer “not very interested in obtaining employment” was responsible for his own injury and that there was no basis for any award for future economic loss.

George Meecham fell from the back of a flatbed truck when struck by the boom of an excavator that had loaded a kerb laying machine under his guidance. He sustained a fractured elbow and a shoulder injury.

Immediately before the incident he had unclipped the D-shackle from the excavator’s lifting chain and “under armed” it to the excavator operator Michael Harris for him to catch.

It was as Harris – who was not formally qualified to operate the machine and had only little experience on it – moved to his left to catch the object that he bumped a lever setting the boom in motion.

The excavator was owned by the principal contractor on the site – Savco Earthmoving Pty Ltd – but Meecham and Harris were employees of a subcontractor.

Meecham filed a lawsuit against Savco alleging negligence on its part for allowing the unqualified Harris to operate the excavator and contending that a competent operator would have prevented the accident by shutting down the boom once the loading operation was complete.

Judge Suzanne Sheridan – when the matter came before her in the District Court in Brisbane – found that Savco was negligent by allowing Harris to operate the machine but concluded the accident may well occurred even had a qualified machine driver been in control.

In doing so she accepted Savco’s submission that the accident had not been caused by its failure or Harris’s error but rather had occurred because Meechan had distracted Harris by throwing the object to him.

In exonerating Savco of liability, she provisionally assessed his damages at $39k with no allowance for loss of future earning capacity.

On appeal, the court was unanimously of the view that Savco’s negligence in allowing Harris to operate the excavator was causative of the injury.

Acknowledging that such an accident may well have occurred even when the machine was under the control of a qualified and experienced operator, Justice Phillip McMurdo – who delivered the lead judgement – observed that was not the issue that the court needed to decide.

“The question is whether Savco’s negligence, by permitting Mr Harris to operate its machine, created the risk, or substantially increased the risk,” he explained.

In his view Savco’s negligence did “create or at least substantially increase that risk” and “on a broad common sense view” it should be held to have caused Meechan’s injury.

Whereas Judge Sheridan had considered – if Savco had indeed been negligent it all – Meecham was contributorily negligent to the extent of 80%, Justice McMurdo and Justice Fraser ruled the appropriate assessment should be just 20%.

Justice John Bond differed with the majority only on that point, deciding that the appropriate measure of contributory negligence on Meecham’s part was 50%.

Turning their mind to damages, the appeal judges noted the differing opinions as to whole person impairment from orthopaedists Phillip Duke (1%) and his colleague Mark Robinson (4%) in the context of the plaintiff’s contention that his injuries would limit his ability to take up labouring jobs in the future.

Justice McMurdo noted however that “it is unnecessary for a plaintiff to establish that his injury will be productive of financial loss, and that it is sufficient to prove that there is a chance of that loss occurring”.

Given that Meecham’s injury occurred in his early 20s and that Judge Sheridan considered Dr Duke’s opinion to be perhaps “unduly hard”, the court increased general damages from $10k to $25k.

The appeal judges also thought there was a sufficient basis for future economic loss arising by reason of a permanent impairment and the risk of arthritis.

“The question here is not whether, more probably than not, a loss will be suffered,” Justice McMurdo ruled. “It is whether there is a diminished earning capacity which may be productive of financial loss. The extent of the diminution in this case is low, as is the risk of financial loss. But some allowance must be made for it”.

A discounted sum of $68k was allowed for loss of earning capacity in the future making up a total award – after deducting 20% for contributory negligence  – of $104k.

Meechan v Savco Earth Moving Pty Ltd [2021] QCA 264 Fraser and McMurdo and Bond JJA, 3 December 2021

source https://cartercapner.com.au/blog/chance-extent-of-future-eco-loss-low-labourer-wins-70k-global-award/

QantasLink not Qantas: liability trap for passengers on other airline’s aircraft

Can an airline that tickets a passenger for a flight under its name escape liability under air carriage law because the flight is conducted on an aircraft operated by a different carrier?

That was the issue that confronted Jeffrey Vock when Qantas sought summary dismissal of his claim for compensation for an injury that occurred while disembarking QantasLink flight QF2331 in April 2018 at Brisbane Airport.

In its Defence to Vock’s injury lawsuit, Qantas pointed out that – “surprisingly” – the QantasLink busines name is owned Sunstate Airlines Pty Ltd, the related company that conducted the “codeshare” flight under its own airline licence.

Too late to join Sunstate as a second defendant, Vock was called on to convince Judge David Kent in the District Court at Brisbane that his action against Qantas should be allowed to continue to trial.

“It seems reasonably clear,” noted His Honour that Queensland Health had booked the flight with Qantas through agent Corporate Travel Management.

The purpose of the flight was to allow the passenger to accompany his mother-in-law on the DHC-Dash 8 aircraft from Gladstone to Brisbane for medical treatment.

Notwithstanding that the flight was conducted under a “contract of carriage” “in an aircraft being operated by the holder of an airline licence”, Qantas contended for a strict interpretation of s 28 of the Civil Aviation (Carriers’ Liability) Act 1959 that would impose liability only on the actual carrier, namely Sunstate.

Against that contention, Mr Vock argues that the “contracting carrier”, ie Qantas shares equivalent liability to that of Sunstate.

Because the issue has not been previously decided in a domestic context – and because of gaps in the enabling State legislation – His Honour reserved the statutory interpretation contest to the trial judge.

What most occupied the court – at least in terms of the 20-page judgment – was whether Qantas was estopped from denying it was the carrier by reason of the representations it had made in the ticket and itinerary and in the publication of flight schedules.

He also argued Qantas was estoppel by reason of its solicitors’ “silence” in response to Mr Vock’s agitation being directed to Qantas when it “must have known with the limitation period expiring, the true carrier was Sunstate”.

“It is hard to escape the conclusion,” Judge Kent reasoned, “that it did nothing to disabuse the respondent of his apparent mistaken belief that Qantas was the correct defendant”.

On that argument too, there was in His Honour’s view a “triable issue” in which the passenger’s prospects of success were “real rather than fanciful”.

If not resolved sooner, the matter is likely to proceed to trial in mid-2022.

Vock v Qantas Airways Limited [2021] QDC 269 Kent QC DCJ, 23 November 2021

source https://cartercapner.com.au/blog/qantaslink-not-qantas-liability-trap-for-passengers-on-other-airlines-aircraft/

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/