WCQ whipped on compliance ask for NOCD particulars of negligence

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The employer was certainly aware of the risk.

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

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

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

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

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

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

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

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

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

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

Not so said the court.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sutton did have an additional win on indemnity costs.

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

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

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

 

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

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

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

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

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

That was in October 2011.

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

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

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

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

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

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

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

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

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

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

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

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

Their claims against the Nominal Defendant were dismissed.

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

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

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

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

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

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

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

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

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

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

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

Horse breaker wins $1.4 mil: appropriate co-worker should have been big and strong

Sean McCormick had registered his concern that the assistant with whom he had been paired in his contracted role as a horse breaker on a thoroughbred  stud near Picton NSW was of “small stature”.

Melanie Bolwell was not suited to the task – he had complained – because at 45kg and standing just 155cm tall, the apprentice jockey had insufficient strength to control flighty steeds in the course of the breaking-in process.

In December 2014, while conducting a weight-testing session with a two-year old mare, McCormick was injured when the horse – under Bolwell’s control as he was mounting it – reared and threw him to the ground.

The worker – who by then had himself broken in about 500 horses and assisted in the breaking-in of many more – sustained injuries to his back, neck and shoulder for which he filed a lawsuit in the NSW District Court.

His case relied on expert evidence from Garry Matthews to whom objection was taken by the Mt Pleasant Stud Farm.

Matthews too had had decades of experience: 20 years as a professional jockey; 8 years of breeding and training endurance horses; and 30 years as a horse trainer.

He also claimed a specialised knowledge of equine behaviour and training as well as desirable attributes of personnel who ought to be involved in the breaking-in process.

The expert supported the case that McCormick should have been assisted by someone “big, tall and strong”.

Judge Margaret Sidis agreed found the stud was in breach of its duty of care in failing to adequately consider the risk to which McCormick was exposed by reason of him being teamed with an assistant who was not capable of controlling intemperate bloodstock.

Mt Pleasant appealed against the acceptance of Matthews’ evidence contending he lacked the expertise for many of the opinions he expressed.

One such example was his statements concerning the equine “mammalian and “reptilian brain” and that they had a “practically a non-existent frontal lobe”.

The appeal judges agreed that such assertions may well have been beyond his expertise as a trainer if taken literally but could nevertheless be understood as “an eccentric way of expressing learned conclusions about the behaviour of horses”.

They ruled that the trial judge had been entitled to accept his evidence, the effect of which was that “the bigger and stronger an assistant, the more likely a horse will yield to them”.

Mt Pleasant also attacked the primary judge’s conclusion that the testimony of its sole director Roderick Hamilton was “unreliable”.

Appeal judges Richard White, Paul Brereton and Jeremy Kirk were loath to interfere with Her Honour’s conclusion as to the witness’s credit.

“The impressions formed by seeing and hearing a witness are not limited to impressions of demeanour in some narrow sense of what is observed,” they noted. “What is heard, the context of the evidence, the tone in which evidence was given may [also] be important”.

In any event, they concluded that the adverse findings against Hamilton on credit were justified.

They further observed that the trial judge’s findings on breach wasn’t based just on the increased risk of injury that arose from the stud’s conduct.

The requisite additional finding – that the risk “came home”, ie the defendant’s breach materially contributed to the occurrence of the injury – had also been made.

Mount Pleasant also contested numerous factual findings including the causal link that McCormick’s accident would have been avoided – as attested to by expert Matthews – by providing him with an assistant handler “of suitable size, experience, height, stature and strength”.

Such link had been proved said the appeal judges. The failure to provide an assistant of appropriate strength and stature had – on all the evidence – substantially increased the risk of the event that had caused the injury.

The appeal was dismissed. Judge Sidis’ award of $1.4 million in damages to McCormick, stands.

Mt Pleasant Stud Farm v McCormick [2022] NSWCA 191 White JA Brereton JA Kirk JA 23 September 2022 Read case

source https://cartercapner.com.au/blog/horse-breaker-wins-1-4-mil-appropriate-co-worker-should-have-been-big-and-strong/

Train accident calamity: over-eager passenger dragged between carriage and platform

A commuter who fell between the edge of the platform and a train after thrusting her arm between the closing doors of the carriage she was attempting to board, has won substantial damages from the commuter network for the train accident.

Aluk Chol took her time to get up from her seat in August 2016 as the Guildford train pulled into Auburn station.

After collecting her shopping bags, the 46-yr-old immigrant from South Sudan approached the doors of the carriage while at the same time, they started to close.

She threw out her right arm between the closing doors but they did not re-open.

The sensors indicated on the train guard’s panel that the doors had safely closed and the guard allowed the train to start to move off.

At the same moment Aluk was pulled down and fell into the gap – while holding on to her handbag whose strap was still caught between the doors – and was dragged along as the train accelerated away before coming to a stop after the guard raised an emergency alarm.

Her catastrophic injuries included a ruptured bladder; substantial pelvic fractures; spinal fractures; and neural damage to her back and legs.

Aluk filed a lawsuit in 2019 alleging that Sydney Trains had an inadequate system in place at the station to ensure that the train did not depart whilst she was in a position of danger.

She also contended that rail staff had seen her approach the carriage doors and allowed it to depart instead of taking steps to ensure that it did not move until she was away from the platform edge or had boarded the train.

The claim came before Justice Richard Cavanagh in the NSW Supreme Court.

A station attendant explained the safety system involving the holding up of a white flag when signalling from the platform that it was safe for the train to move on and a red flag to signal for the train to stop or stay put.

He agreed that a person standing on the white line on the edge of the platform- beyond the yellow line – was in a position of extreme danger warranting the raising of a red flag.

Experts called by each party agreed the train guard could see that the plaintiff was in contact with the train and could have delayed the departure of the train or reopened the doors which – in either case – would have likely prevented the accident.

The plaintiff identified the risk of harm as being one of a passenger being caught in the closing doors of the train and being injured if the train commences to move before he or she is clear of the train.

Given such risk was reasonably foreseeable and not insignificant, the train operator was required to take care in ensuring her safety.

It also emerged that it was common knowledge among rail staff, that from time to time, passengers sought to rush towards trains as the doors closed to squeeze between them.

Justice Cavanagh rejected the defendant’s contention that she had fallen because she was intoxicated or simply lost her balance.

“She fell because of train started to move while her handbag was caught in it [and] was in some way pulled over, leading to her falling between the train platform”.

His honour went on to conclude that an adequate system was in place and that the defendant could not be required to stop its trains every time someone attempted to board late by banging on a carriage door.

He found though that the train guard had mistakenly concluded that the passenger had been moving away from the train when he allowed it to move off.

The system had therefore not been adequately complied with.

“I am satisfied that the plaintiff’s accident was caused by a casual act of negligence on the part of the guard [failing] to ensure that the plaintiff had moved away from the dangerous position that she was in before he allowed the train to move”.

That said, he ruled there had been contributory negligence on the part of the passenger of 33%.

General damages were assessed for her severe life-long disablement at $400,000. Future care – at 3 hrs every day – was allowed at $800,000 and $187,000 was allowed for the period up to trial. No claim for income loss was made.

The total assessment of $1.76 million was reduced by the contributory negligence finding, to $1.18 million.

Chol v Sydney Trains [2022] NSWSC 1266 Cavanagh J 21 September 2022 Read case

source https://cartercapner.com.au/blog/train-accident-calamity-over-eager-passenger-dragged-between-carriage-and-platform/

Left unconscious in the back of hot car: does CTP apply to heatstroke injuries?

CTP insurance responds to an injury compensation claim arising out of someone else’s negligence if the injury results from – among other things – the “driving” of the insured vehicle.

How far does the policy extend where the negligence alleged is the driver having parked or stopped the insured vehicle at a place that exposes others to danger?

In January 2012 Ronnie Kravits (not her real name) was found unconscious by her parents in the back of a car at Brighton in Melbourne.

The 19-yr-old had passed out two days earlier after injecting herself with heroin in the company of her friend Jessica and Leonard Montague who had supplied the drug.

After moving her to the backseat of the car, Montague drove to the Crown Casino where he parked while they went inside to play the tables.

They returned from the casino to the locked vehicle a few hours later to find Ronnie still unconscious on the backseat.

Montague then drove to Brighton and parked in a street near his home. He left the car – with its windows up – without returning. Ronnie was still in the back.

Over the two days that the applicant lay unconscious in the vehicle, the outside air temperature reached 31 degrees with that inside topping 40.

When discovered at 11:00 pm her body temperature was recorded by ambulance officers at 41 degrees.

Her injuries included heatstroke, hyperthermia, cardiac arrest, multiple organ failure, bilateral pulmonary emboli, severe motor neuropathy and paraplegia.

Ronnie filed a lawsuit in December 2019 against the driver, Montague.

Her claim was dismissed in June 2021 on the basis that vehicle’s use as a place in which to inject was “utterly foreign to its character as a motor vehicle” and not incidental to its normal use.

Further, she had remained in the vehicle from having been rendered unconscious and immobile by the injection of heroin, “not as an incident of being transported from Southbank to Brighton”.

Ronnie contended on appeal that the trial judge had erred by failing to properly consider the causal relationship between her injuries and the location in which the car was parked and the external conditions there.

The policy extended beyond – she argued – injuries directly caused by “driving” to those where the causal connection between any aspect of driving of a vehicle and the injuries was established.

Appeal judges David Beach, Richard Niall and Cameron Macaulay agreed.

They observed that the vehicle’s use as a place for ingesting drugs was irrelevant in that in that such activity long preceded the actions of the driver that relevantly contributed to Ronnie’s heatstroke injuries.

“The fact that there was no collision was no bar to a conclusion, that the applicant’s injuries arose out of the use of the vehicle,” they ruled in a joint judgment. “The manner and place in which he parked the vehicle caused its internal temperature to rise to a level which was unsafe”.

“The temperature within the car was plainly a consequence of the physical features of the vehicle and the driver’s decision to park it outside and exposed to the elements”.

Damages are yet to be assessed in a separate hearing but given the extent of the heatstroke injuries, it would be surprising if they were not to exceed $2 million.

Section 5 of the Motor Accident Insurance Act in Queensland requires the injury – to be compensable – to have occurred “as a result of the driving of the motor vehicle”.

It is therefore unclear whether the Victorian decision would have application in Queensland either to claims by will the injured person or for example parents as a result of ‘nervous shock’ following a child tragedy.

Because though there is no temporal requirement – the section referring only to “the driving of the motor vehicle” not requiring that the injury occurred “while a motor vehicle is being driven” – it is arguable that a Queensland CTP policy would respond to such an injury if it were to occur here.

RBK v Montague [2022] VSCA 183 Beach, Niall and Macaulay JJA, 31 August 2022

source https://cartercapner.com.au/blog/left-unconscious-in-the-back-of-hot-car-does-ctp-apply-to-heatstroke-injuries/