QIRC upholds workers’ comp application made 17 months after first GP consult

The Queensland Industrial Relations Commission – QIRC – has validated a worker’s application for compensation lodged 17 months after the date she was handed a GP medical certificate for the injury.

Chantal Nicholson started work in the anatomy department of the University of Queensland in September 2016.

In August 2020 she filed an application for workers’ compensation for psychological injuries, specifically ‘work related stress/adjustment disorder’ for which she first sought medical treatment in March 2019.

The University – a Self Insurer – to reject her application on the basis that s 131 of the Workers’ Compensation and Rehabilitation Act 2003 (‘WCRA’) requires an application for workers’ compensation to be lodged within 6 months “after the entitlement to compensation for the injury arises”.

On review, the regulator upheld Nicholson’s contention that her first consultation for her compensable injury did not in fact occur until March 202o notwithstanding she saw GP San San Oo at the Oxley Family Medical Centre in March 2019 for work induced stress and anxiety.

UQ appealed that ruling to QIRC where Nicholson maintained her argument that she was not made aware in the consultation in March 2019 – because it was brief, no diagnosis was given, no treatment was recommended and she was only given a generic certificate for one day off work – that she had suffered a compensable work related injury.

Vice President Daniel O’Connor agreed that in order for a doctor to assess such an injury, “there must be evidence of some evaluation, ie an expression of opinion that the injury arose out of the employment”.

“I remain unconvinced that it has been demonstrated that a conclusion or opinion that Ms Nicholson has suffered an injury within the meaning of the WCRA was either formed or communicated to her in March 2019,” he ruled.

He also noted that her symptoms of psychological or psychiatric injury as at March 2020 were vastly different to those she was experiencing in March 2019.

Having been satisfied on those grounds that Ms Nicholson’s failure to give the notice within 6 months was reasonable, he ruled that the time limit as provided for in s 131(1) of the Act should be waived.

“It was in March 2020 that Ms Nicholson became incapacitated to work,” the Deputy president concluded in ordering that the Regulator’s decision to allow the application for workers’ compensation as one for acceptance, should be confirmed.

The University of Queensland v Workers’ Compensation Regulator [2022] QIRC 131 O’Connor VP, 6 April 2022

source https://cartercapner.com.au/blog/qirc-upholds-workers-comp-application-made-17-months-after-first-gp-consult/

Low impact injury, nil physical symptoms: not-at-fault driver wins $201k

Can a motor vehicle collision at very low impact speed cause a significant personal injury?

Consider the case of Brett Murphy whose taxi was rear-ended in Rockhampton in September 2017 by a Holden Rodeo driven by Leah Turner-Jones.

Murphy’s case was that the following vehicle was travelling between 30-60km/h and accelerating at the point of impact.

But his own dash cam footage and the minimal damage to both vehicles suggested otherwise.

When the matter came for determination before him, Justice Graeme Crow accepted the submission by Allianz – the CTP insurer for the at-fault vehicle – that it was “a very low speed, minor impact accident”.

His Honour went on to observe that those facts did necessarily mean a victim had not suffered from “a high level of symptoms of neck or spinal injury”.

As much was agreed by orthopaedist Prue Fitzpatrick who examined the 50 yr old Murphy in July 2018.

She concluded there was no clear organic pathology to explain the severity of his ongoing symptoms and that the former lawyer and now taxi-driver was likely suffering from a pain syndrome.

Neurologist Don Todman thought differently and diagnosed a post-whiplash syndrome for which he attributed a 7% whole person impairment

Justice Crow was critical of Dr Todman for categorising Murphy under DRE 2 in the absence of physical symptoms merely because of the patient’s own reports of pain.

“The difficulty with such an approach is that it elevates a patient’s subjective complaints of pain over the expert’s findings on examination,” His Honour observed.

“If that approach were correct, then expert orthopaedic surgeons, neurosurgeons, and neurologists need not examine a patient before forming an opinion, as emphasis is placed upon what a patient complains of rather than what is demonstrated”.

He adjudged that the inconsistency of Dr Todman’s findings on patient examination supported Dr Fitzpatrick’s opinion that there was no organic pathology to explain his severe ongoing symptoms and accepted her opinion that the whiplash injury ought to be characterised as 0% permanent impairment.

That said – noting Dr Fitzpatrick’s diagnosis of a pain syndrome and Murphy’s unchallenged evidence was that the injury had a big effect on the activities of daily living – Justice Crow went on to adopt item 88 (moderate cervical spine injury) rather than item 89 (minor cervical spine injury) as the relevant descriptor.

“It is appropriate to conclude that the injury is moderate, notwithstanding the injury has not caused moderate permanent impairment,” he ruled “because of the great deal of pain that Mr Murphy had suffered, and its negative impact on Mr Murphy’s activities of daily living”.

On that basis an ISV of 10 was allocated ie at the top of the range for an Item 88.

Murphy – a law graduate from Bond University who suffers from paranoid schizophrenia – was characterised by the insurer as dishonest by reason of a false declaration in his 2014 application for a commercial driver’s licence regarding his health status.

“I do not accept Mr Murphy’s explanation that this could have been an error and he had not intended to deceive,” Justice Crow ruled.

“On the other hand, Mr Murphy did not appear to exaggerate the effect of his whiplash injury [and] I formed the impression [he] was a credible witness. A fabrication that enables a plaintiff to obtain work or earnings is not necessarily destructive of credit”.

The court assessed his past loss of economic capacity at $59,675 and $107,786 – 50% of current earning projected for 17 years less 35% – for the future to make up a total award of $201k.

Murphy also asked for exemplary damages against Allianz by reason of its failure to have “properly rehabilitated him”. That claim was refused as being “not maintainable at law”.

Murphy v Turner-Jones & Anor [2022] QSC 40 [2022] 14 QLR Crow J, 31 March 2022

source https://cartercapner.com.au/blog/low-impact-injury-nil-physical-symptoms-not-at-fault-driver-wins-201k/

Appeal court upholds tattoo removal claim due too much laser

Tattoo removal is a billion-dollar industry and will grow bigger as a result of the wide availability of laser removal sparks an uptick in tattoo regret syndrome.

The painful treatment for removal has remained largely the same for decades and has varying degrees of success.

In June 2017, Zeinab Daemolzekr attended a Cosmetic Skin Doctors (CDC) clinic for treatment to remove tattoos from each of her forearms.

She had an initial consultation with Dr Galina Shvetsova – who recommended six treatment sessions – and explained the process to her patient.

The ink in a tattoo is located in the dermis – under the outer layer of the skin or epidermis – and consists of particles too large for white blood to remove naturally, making a tattoo permanent.

Laser treatment aims to remove the ink from the dermis without damaging the epidermis by causing the ink particles to become smaller so that the body’s macrophages (white blood cells) can remove them.

After “numbing cream” was applied a local anaesthetic was injected at numerous points of both tattoos before the laser treatment was administered in a separate room by one of the clinics several nurses, Nurse Nicola Clow.

The treatment was however far more painful than what Daemolzekr had experienced during an earlier session at another clinic.

Nurse Clow responded pain by administering a Lignocaine injection for anaesthetic relief and said – according to Daemolzekr – “we will turn it up so that there will be less sessions” needed to remove the tattoo.

After the treatment, the nurse bandaged her arms. Once the anaesthetic started to wear off they felt like they were “on fire” and she was in a lot of pain.

Daemolzekr returned to the clinic and to her GP over the next week complaining of inflammation and infection to the wound.

General Practitioner Sidra Akhtar recorded that she had ‘second degree burns post tattoo removal with laser’, and ‘should see a plastic surgeon’. She was admitted to the Monash Medical Centre where good quality photographs were taken of the burns.

Due to financial constraints she did not consult a plastic surgeon until February 2019 when it was noted that “severe scarring as a result of the laser as a result of the laser tattoo removal”.

In the inevitable injury compensation contest, Daemolzekr recruited cosmetic and laser medicine specialist Adam Rish whose testimony was that the scarring and full thickness burns to the forearms were a result of “inappropriately high fluence”.

He explained that laser treatment applied at too high a fluence – ie energy applied per cm of skin surface – causes particles to flicker off, leaving a visible hole or holes in the treated area.

“The very fact of a burn speaks of excessive fluence,” he observed. “The Hertz will make the laser faster but will not necessarily damage the dermis. The excessive fluence is really the reason for damage”.

Evidence was led on behalf of the clinic that the laser machine was set for a “fluence” of 4.2 joules/cm².

According to Dr Rish the laser at that setting “would be highly unlikely to have caused burns or scarring” as it in fact did.

Asked why there was no sign of a full thickness burn when she returned to the CDC clinic three days after her treatment, Dr Rish explained: “It’s evolving. It’s underneath the skin. There is still an intact layer of dead tissue on top of the wound, so it hasn’t sloughed off yet”.

One of the features of Daemolzekr’s post-procedure presentation was that the ink had disappeared.

While Rish explained that was a consequence of the damage to the dermis caused by the too high fluence, his colleague Ian Holten thought that – and the scarring – could only have been the result of subsequent laser treatment or a separate trauma.

The appeal judges upheld the primary judge’s preference for the analysis provided by Dr Rish given his experience in having conducted 6000 or so of such procedures himself and the logic of his conclusions.

Dr Holton on the other hand was “not an impartial expert” and “appeared to assume it was his function to attribute legal responsibility”.

“His Honour’s findings were clearly open to his Honour, and certainly not glaringly improbable,” observed their Honours in a joint judgement.

They refused to leave to appeal and Ms Daemolzekr get to keep the damages assessed in the County Court.

CDC Clinics v Daemolzekr [2022] VSCA 54 Niall, Kennedy and Macaulay JJA, 7 April 2022

source https://cartercapner.com.au/blog/appeal-court-upholds-tattoo-removal-claim-due-too-much-laser/

Precautions required “from the moment she started the job”: $435k psych injury win

The High Court has rejected the contention that an employer enjoys immunity from liability for adverse health and safety outcomes to personnel who voluntarily sign up to do high risk jobs.

Zagi Kozarov was recruited in 2009 to a Specialist Sexual Offences Unit in Melbourne to work with 24 other lawyers prosecuting serious sexual offences involving adult and child victims.

The newly admitted solicitor interacted with survivors of abuse and was intimately exposed to their traumatic experiences via trials, meetings, witness preparation and viewing explicit child pornography.

A sole parent of young children who was dedicated, hard-working, ambitious, she was one of many staff who met after hours in April 2011 to discuss concerns about their wellbeing.

The group signed a memo to management expressing concerns about increasing court commitments; being required to take work home on weeknights and on weekends; and that they were experiencing a marked increase in symptoms of stress.

A “sentinel event” – after a confrontation with a supervisor who incorrectly accused her of turning up to work late – marked her return to work in August 2011 following a two-week absence on sick leave.

Her highly emotive and agitated response to the incident was so disproportionate to what had occurred and so dramatic that – according to the Supreme Court judge adjudicating her injury compensation claim – management ought to have known that her mental state was at breaking point.

By the end of August 2011, a reasonable person in the position of the respondent would – ruled Justice Jane Dixon in the Supreme Court of Victoria – “have adverted to the evident signs and observed that she was failing to cope with her allocated work and that her mental health was at risk”.

The trial judge also found that Ms Kozarov would have accepted an offer of rotation out of the SSOU to work in another section, thereby avoiding the exacerbation of her PTSD that occurred after that time.

That finding was rejected by the Court of Appeal which concluded she would have been unlikely – because she had applied for a promotion and was committed and dedicated to her work – to have accepted any rotation out into another section of the Office of Public Prosecutions.

On appeal to the High Court, their Honours observed that an employer engaging a worker to perform specified duties is entitled to assume – in the absence of evident signs warning of the possibility of psychiatric injury – that the employee considers that he or she is able to do the job.

But the assignment of potentially dangerous tasks imposes on the employer a duty to be proactive in the implementation of measures to ensure the work is performed as safely as possible and to act on information it later acquires about – in the case of psychiatric injuries – the vulnerability of a particular worker.

Applying those principles to the current case they noted that the employer was obliged – by reason of the nature of her work – to take such precautions from “the moment that Ms Kozarov commenced work”.

The risk of injury was already recognised by the employer in its “Vicarious Trauma Policy”, which identified vicarious trauma as “an unavoidable consequence of undertaking work with survivors of trauma”, and as a “process [that] can have detrimental, cumulative and prolonged effects on the staff member”.

Her signature upon the staff memo, an excessive file load, the high proportion of child cases in her file load and her patterns of working late and on weekends and public holidays, were all “evident signs” of a potential metal crisis.

As more “evident signs” of psychiatric injury emerged, the employer ought to have appreciated a considerable increase in the likelihood and seriousness of a psychiatric injury and the greater need to take precautions to mitigate against those risks.

Psychiatrist Professor Alexander McFarlane – an expert in PTSD – supported the view that Kozarov would have ultimately accepted a rotation out given that a “significant majority” of people he advised accepted his recommendation to do so.

And although it was “inherently likely” that Kozarov – once advised of the risks of serious psychiatric injury – would have accepted advice to avoid those risks, their Honours concluded that the employer would not been entitled to accept her refusal to be rotated out.

“An employer will not comply with the common law duty to ensure a safe place of work by acquiescing in the refusal of an employee to be rotated from a position that involves a high risk of serious injury,” observed Justice James Edelman.

Kozarov’s appeal on the “rotation out” point succeeded and the order of the trial judge that she be paid $435k by way of damages was reinstated.

Kozarov v Victoria [2022] HCA 12 Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward, Gleeson JJ, 13 Apr 2022

source https://cartercapner.com.au/blog/employers-must-ensure-high-risk-jobs-are-performed-safely/

Officer wins $860k for police failure to review mental health prior to return to duty

An appeal court has upped the damages police must pay an officer for deploying her back to general duties after the onset of multiple non-work related traumas where there was a failure to review mental health.

Kristen Skinner completed training at the Goulburn Police Academy in October 1994.

Over a 6-year period she attended as a first responder to three suicides, a fatal motor vehicle accident and the discovery of a heavily decomposed body hanging from a tree.

On another occasion she was in a police vehicle that was approached by a man firing a rifle.

In 2003 she took up the position of manager – involving mainly clerical duties – at the police station at Morisset at Lake Macquarie.

Following a back injury in 2006, she was placed on restricted duties. At around the same time she faced numerous personal stressors – a troubled relationship with her boyfriend and the dual diagnoses of cancer of her sister and father – that caused “mental fragility”.

Her father died in February 2007 and she reported symptoms of depression from all of these issues at a self-initiated Employee Assistance Program (EAP) counselling session in May 2007.

An officer in Ms Skinner’s own team committed suicide in June 2007 by hanging himself at home. Another friend and colleague suicided two months later.

Post-suicide counselling initiated by the force was not directed specifically to her circumstances and no report as to her fragile mental condition at that time was received by her commanding officer.

Officer Skinner experienced conflicts with fellow officers and superiors between 2007 and 2008 including in relation to a transfer to general duties at nearby Toronto, a prospect she dreaded in part due to the presence there of a particular officer with whom there was a history of antagonism.

In January 2008, she sought to join the mounted division for which she underwent a job suitability assessment – absent any thorough review of her mental health – by police psychologist Diane Hanna without disclosing any difficulties experienced on return to general duties or any symptoms of depression.

In 2010, the officer was discharged on medical grounds for worsening depression.

Her lawsuit against the State of NSW that was eventually filed in 2017  alleged NSW Police breached its duty of care as employer by failing to conduct thorough mental health assessment in May 2007 in advance of her transfer back to general duties and for failing to provide adequate support for her psychiatric conditions.

In March 2021 Judge Alister Abadee in the NSW District Court upheld the claim – insofar as it related to major depression, but not in respect of her PTSD –  and awarded her damages of $743,780.

In arriving at that figure, the judge reduced the damages that would have applied had her entire psychological deficit been her employer’s responsibility – by 40% – to reflect the “real chance” that her earning capacity would have been adversely impacted in any event by other conditions including her PTSD for which the police force was not liable for failing to detect.

He also held Skinner to have been contributorily negligent to the extent of 10% for having failed to report her condition to Ms Hanna during the 2008 mounted division intake assessment.

Judge Abadee identified NSW Police’s duty as requiring it to “identify officers who, through the performance of their duties, were at risk of suffering, or were suffering, psychiatric or psychological harm” and to “ensure any officer so identified received appropriate treatment and support”.

Such duty extended – so ruled the judge – to the identification of hazards associated the injured worker’s return to duty and the assessment of the risks of further injury posed by a return to duty.

The State appealed the finding of liability and Ms Skinner cross-appealed against the findings that the force’s failings did not cause her PTSD.

In delivering the lead judgment, Justice John Basten upheld Judge Abadee’s articulation of the force’s duty to its employees.

He also affirmed the ruling that NSW Police had breached its duty of care to Ms Skinner by failing to conduct a thorough mental health assessment after May 2007 that would have alerted her superiors as to the seriousness of her depression.

Her commanding officer “knew, or should have known, about Ms Skinner’s depressive condition” at that time but failed to provide her adequate psychological assistance and did not obtain any reports about Ms Skinner’s mental condition from the police psychologist or the EAP counsellors.

Moreover, further investigation should have been prompted by the officer’s “strong resistance to resuming general duties” in 2007-2008 and the transfer to Toronto.

His Honour also observed that – because traumatic exposure is almost unavoidable when performing general duties – an officer already suffering from a depressive condition will foreseeably sustain further psychological harm by that deployment.

The appeal judges concluded that the employer’s conduct of exacerbating – or failing to ameliorate – her existing condition was sufficient to establish the requisite ‘causation’.

They concurred with the trial judge’s view that her PTSD would not have been diagnosed even had a full work-up been performed in May 2007 and hence her employer was entitled to the discount on damages that had been applied in the lower court.

They did however reject his conclusion that Ms Skinner had been contributorily negligent in failing to mention her depressive condition to Hanna on the basis that it was Hanna who should have done the enquiring about whether the officer had mental health symptoms given the latter’s failure to answer a question in relation to same on the interview form.

The appeal court dismissed the appeal by the State of NSW and increased Ms Skinner’s award to $857,948.

State of New South Wales v Skinner [2022] NSWCA 9 Basten JA Brereton JA McCallum JA, 8 February 2022 Read case

source https://cartercapner.com.au/blog/officer-wins-860k-for-police-failure-to-review-mental-health-prior-to-return-to-duty/

Theatre man cops second big compo bill for under-age sex abuse of employee

The former owner of a suburban Sydney cinema has been hit with a second million-dollar compensation order for under-age sex abuse of a male employee in the 1980s.

Darren Lewis – then 14 yrs – was recruited by Philip Doyle to work at the Kogarah Mecca Cinema in April 1986.

On August 6 that year, a record 327mm of rain fell in Sydney within a 24-hour period causing chaos, flood, and killing five people.

Flooded roads prevented Darren’s parents from collecting him at the cinema after work resulting in an offer from Doyle that he spend the night at his San Souci residence.

Once there, Doyle manipulated the youth into a situation where it became clear he was expected to engage in sex acts in Doyle’s only bed, the shock of which froze him in terror while he complied with the predator’s requests.

The boy was prevailed upon on three further occasions that year and another in September 1987.

Darren’s description of the change that the encounters had brought about was that he “started to become a different person, felt dirty and disgusted with himself and carried shame”. He “had nothing good to offer anyone as a friend or person” and would “only be valued if he was being taken advantage of”.

He left his job at the cinema in 1987 and as attested to by his parents and school friend Kerry Baird – whom he married in 1993 and then separated from in 2005 – became withdrawn and began experimenting with drugs.

Darren did not seek treatment for his depressed mood or alcohol & cannabis addiction until after he provided a statement to Police in 2009.

His proceedings in the NSW Supreme Court – filed in 2015 – relied upon evidence from psychiatrist Richard Baker whose testimony was that the sexual assaults were a cause of Darren’s Persistent Depressive Disorder.

Baker and colleague Alex Apler agreed that other factors contributed to the condition including substance abuse, his bipolar disorder, his parents’ separation and a tragic accident which had befell his own son in 2009.

Justice David Davies accepted Darren’s accounts of four episodes but in relation to the fifth, ruled the evidence insufficient to conclude that any assault – as opposed to an attempt at solicitation – had actually occurred.

Rejecting the defence plea that the boy had been a willing partner, His Honour observed that it was never possible for a child to consent to sex and that his employee status – which Darren swore made him feel under ‘pressure’ – compelled a conclusion to the contrary.

Although there were many other stressors that may have played a part, the defendant had failed to discharge its onus of disentangling the assaults from them so as to exclude the assaults as a contributory cause.

His Honour was “entirely satisfied” the sexual assaults “substantially contributed to his condition” and were its “principal cause” not least because of the evidence from his extended family that pointed to a significant change in his behaviour at about the age of 15 and Dr Baker’s view that other life issues would not probably have led to a depressive order of a persistent nature.

General damages were awarded on a common law basis – as is allowed in NSW for sexual assault – at $400,000 and aggravated damages in the sum of $40,000.

Relying on evidence from Mark Thompson of Vincent’s – who postulated the financial loss from Darren’s lacklustre work history – Justice Davies ordered Doyle also pay $250,000 for past loss of income and $200,000 for future loss of earning capacity.

The total award in Darren’s favour of $1.36 million includes interest of $358,000.

This judgement comes just four months after Doyle was ordered to pay $1.27 million to Paul Miles for similar assaults in 1985 when he was employed at same the Kogarah theatre when aged 16.

Doyle was convicted of the assaults on Lewis in 2012 and sentenced to 3 years’ jail.

Lewis v Doyle [2022] NSWSC 92 Davies J, 18 February 2022 Read case

source https://cartercapner.com.au/blog/theatre-owner-cops-second-big-compo-bill-for-under-age-sex-abuse-of-employee/

Judge lashed for poor job on tractor driver’s repetitive strain injury claim

What happens if after years of preparation for a trial – a judge fails to give reasonable consideration to a party’s evidence and then provides hopeless reasons for the decision he made?

Consider the case of Anthony Cavanagh who sued his employer for an over period of time repetitive strain injury arising out of work he undertook as a racecourse manager.

Cavanagh had been employed at the Bushland Drive Racecourse for 12 years since leaving high school – which he did not complete – until February 2011 and has not worked since.

What constituted the defective system of work of which he complained was the need to continuously look back over his right shoulder from the seat of a tractor to judge the height of a leveller attachment being dragged behind to smooth out top dressing.

That this had to be done “every few seconds” – six days per week in 3 to 4 hour stints – meant such system had been negligently designed, he alleged.

It was that history that had been put to his expert medical witnesses and upon which his claim depended for its success in circumstances where the Manning Valley Race Club failed to remediate the set-up by installing a mirror or rear-vision camera as well as a swivel seat.

Cavanagh called ergonomist Fiona Weigall who swore – in unchallenged evidence –the injury could have been prevented by the adoption of such measures.

Counsel for the race club – aided by intervention from the bench – was skilful enough to promote confused accounts from Cavanagh as to the frequency of his neck and shoulder rotation.

Having answered he was required to look back at the leveller “30 seconds out of the minute” he then responded in the affirmative to the trial judge’s question “so you would glance back every 30 seconds or every minute”.

Then – having successfully re-explained to counsel that he turned his head back at least 10 times each minute for five or six seconds each time – His Honour posed questions that effectively confused him again.

Although complicit in causing the plaintiff’s confused testimony, His Honour went on to labour the “inconsistencies in [Cavanagh’s] accounts” and his failure to provide a “best estimate”, to dismiss the claim.

The need to turn backwards once only each minute – the judge decided after a four-day trial – did not create any reasonably foreseeable risk of injury.

Cavanagh’s claim was dismissed with a notional assessment of damages of just over $1 million, a sum that the parties had agreed.

In lambasting the acting District Court judge, Justice Mark Leeming in the NSW Court of Appeal noted the 4 ½ page judgement was “strikingly short …for a trial worth more than $1 million”.

So “poorly crafted” were the reasons, that the appeal court had to work to do in deciding whether a finding had actually been made that Cavanagh had turned backwards only once per minute.

Favouring the “charitable” view that such a finding should be inferred because that was relied on to dismiss the case, Justice Leeming reasoned that such conclusion faced “insuperable difficulties”.

Those difficulties included the failure to even refer to Cavanagh’s reasonably concise re-explanation of what had occurred and the absence of any reconciliation his several explanations that his attention had been predominantly directed to the rear.

“There is real doubt as to how the reasons for judgement are to be understood on the issue which was treated by the primary judge as dispositive of the entirety of the claim,” the appeal judges ruled. “It follows that the judgment cannot be sustained and the appeal must be allowed”.

Because damages had been agreed and the only factual issue in contest was that on which the defendant had failed, the court refused its request for a retrial and instead concluded the race club had been negligent for the reasons contended by Cavanagh and entered judgement – then and there – in his favour.

who sued his employer for an over period of time injury arising out of work he undertook as a racecourse manager.

Cavanagh had been employed at the Bushland Drive Racecourse for 12 years since leaving high school – which he did not complete – until February 2011 and has not worked since.

What constituted the defective system of work of which he complained was the need to continuously look back over his right shoulder from the seat of a tractor to judge the height of a leveller attachment being dragged behind to smooth out top dressing.

That this had to be done “every few seconds” – six days per week in 3 to 4 hour stints – meant such system had been negligently designed, he alleged.

It was that history that had been put to his expert medical witnesses and upon which his claim depended for its success in circumstances where the Manning Valley Race Club failed to remediate the set-up by installing a mirror or rear-vision camera as well as a swivel seat.

Cavanagh called ergonomist Fiona Weigall who swore – in unchallenged evidence – the injury could have been prevented by the adoption of such measures.

Counsel for the race club – aided by intervention from the bench – was skilful enough to promote confused accounts from Cavanagh as to the frequency of his neck and shoulder rotation.

Having answered he was required to look back at the leveller “30 seconds out of the minute” he then responded in the affirmative to the trial judge’s question “so you would glance back every 30 seconds or every minute”.

Then – having successfully re-explained to counsel that he turned his head back at least 10 times each minute for five or six seconds each time – His Honour posed questions that effectively confused him again.

Although complicit in causing the plaintiff’s confused testimony, His Honour went on to labour the “inconsistencies in [Cavanagh’s] accounts” and his failure to provide a “best estimate”, to dismiss the claim.

The need to turn backwards once only each minute – the judge decided after a four-day trial – did not create any reasonably foreseeable risk of injury.

Cavanagh’s claim was dismissed with a notional assessment of damages of just over $1 million, a sum that the parties had agreed.

In lambasting the acting District Court judge, Justice Mark Leeming in the NSW Court of Appeal noted the 4 ½ page judgement was “strikingly short …for a trial worth more than $1 million”.

So “poorly crafted” were the reasons, that the appeal court had to work to do in deciding whether a finding had actually been made that Cavanagh had turned backwards only once per minute.

Favouring the “charitable” view that such a finding should be inferred because that was relied on to dismiss the case, Justice Leeming reasoned that such conclusion faced “insuperable difficulties”.

Those difficulties included the failure to even refer to Cavanagh’s reasonably concise re-explanation of what had occurred and the absence of any reconciliation his several explanations that his attention had been predominantly directed to the rear.

“There is real doubt as to how the reasons for judgement are to be understood on the issue which was treated by the primary judge as dispositive of the entirety of the claim,” the appeal judges ruled. “It follows that the judgment cannot be sustained and the appeal must be allowed”.

Because damages had been agreed and the only factual issue in contest was that on which the defendant had failed, the court refused its request for a retrial and instead concluded the race club had been negligent for the reasons contended by Cavanagh and entered judgement – then and there – in his favour.

Cavanagh v Manning Valley Race Club Ltd [2022] NSWCA 36 Leeming JA Simpson AJA N Adams J, 15 March 2021 Read case

source https://cartercapner.com.au/blog/judge-lashed-for-poor-job-on-tractor-drivers-repetitive-strain-injury-claim/