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WCC and WID Law Review

Recent case law October 2014

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Decision / More Info Legislation The question raised The new position
ADCO Constructions Pty Ltd v Goudappel
High Court of Australia
16/05/2014
Full Decision
Whether the disentitling provisions under the 2012 amendments to the Worker’s Compensation Act 1987 (NSW) (“the Act”) affecting claims for permanent impairment apply to prevent a worker from claiming compensation arising under s.66 when the worker had previously made a claim under the Act for the same injury prior to the enactment of the amendments.
If a claim for permanent impairment is not specifically sought before 19 June 2012 then it will be subject to the disentitling provisions of the 2012 amendments to the Act (namely, no compensation for pain and suffering; the application of the s.66 threshold of 10%WPI and the limiting of claims for permanent impairment to one claim per injury).
Comcare v PVYW
High Court of Australia
30/10/2013
Full Decision
When will injuries sustained outside the actual workplace be compensable as “arising out of or in the course of the employee’s employment”?
An injury may be regarded as having been sustained in the course of an employee’s employment:
1. Where an injury was suffered by an employee whilst engaged in an activity in which the employer had induced or encouraged the employee to engage; or
2. Where an injury was suffered at and by reference to a place where the employer had induced or encouraged the employee to be.
Goudappel v ADCO Constructions Pty Ltd
New South Wales Court of Appeal
29/04/2013
Full Decision
Do the 2012 amendments to the Workers Compensation Act apply to claims for permanent impairment brought under s.66 & s.67 of the Act in circumstances where the Worker has previously made a claim for compensation prior to 19 June 2012.
The 2012 amendments to the Workers Compensation Act 1987 (NSW) do not apply to a claim for lump sum compensation under s.66 and s.67 of the Workers Compensation Act 1987 (NSW) where a Worker has made a claim for compensation prior to 19 June 2012 (whatever that claim for compensation may have been – e.g. for weeklies, s.60 expenses, etc and regardless of whether or not that claim for compensation specifically sought compensation under s.66 or s.67 of the Act).
Does an insurer claiming equitable contribution pursuant to the principles of dual insurance need to strictly prove the “common insured’s” liability for the claim and its entitlement to indemnity for that liability or does it only need to show a reasonable compromise of these matters?
An insurer claiming equitable contribution pursuant to the principles of dual insurance is only required to prove a reasonable compromise of the “common insured’s” liability. However, unless a prior agreement or concession has been reached, the insurer must strictly prove matters affecting each insurer’s liability to indemnify the common insured.
Extenstion of Time for limitation period, and time to lodge an appeal.
In exceptional circumstances, the limitaiton period to lodge an appeal can be extended to four years.
Watson v Qantas Airways Limited
New South Wales Court of Appeal
08/10/2009
Full Decision
Whether the Applicant’s injuries arose out of or in the course of his employment.
When determining whether an employee’s injury could be characterised as occurring “in the course of employment” the reformulated test set out in Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; 173 CLR 473 (“Hatzimanolis”) must be adhered to.
1. Whether ANZ Banking Group Limited v Mercer(“Mercer”)should be followed.

2. Whether the President of the Workers Compensation Commission erred in approach to the application of s9A
Mercer was not followed.

The Court addressed the relationship between the employment limb under ss. 4 and 9 and the phrase “substantial contributing factor” in s. 9A.

The Court clarified the definition of 'substantial' in s 9A and the operation of the section generally.
Whether an employer could invoke s119 of the Workplace Injury Management and Workers Compensation Act 1998(NSW) ("the Act") to compel a worker to attend independent medical examinations for the purpose of indemnity proceedings brought pursuant to section 151Z of the Workers Compensation Act.
Parties to s151Z(1)(d) proceedings have no right to compel a worker to attend an independent medical examination.
Will a failure by the Worker to properly articulate their claim (eg: aggravation to injury as opposed to injury) constitute a bar to compensation on the basis that s 260 of the Workplace Injury Management Act has not been complied with?

Whether the Deputy President of the WCC erred in law when she dismissed the appeal after finding that there was a denial of procedural fairness to the Employer.
The purpose, scope and operation of s 260 of the Workplace Injury Management Act must be identified by reference to the language of the provision in its statutory context. Section 260 envisages that a claim may not be made as required by guidelines and may yet constitute a "claim". Section 260(5) must be read as being capable of operating in situations where there are no claims made so as to promote the objective of the Act, that is to ensure compensation for work-related injuries.

Further, there is no requirement that notification of a claim needs to be articulated in the statutory language of an "injury" or an "aggravation". Lack of strict compliance with s 260 and the guidelines does not deprive the Commission of its statutory jurisdiction otherwise conferred by statute.

A reviewer must take steps to see that any procedural unfairness caused by irregularity is overcome by giving the prejudiced party time to put forward further evidence or make further submissions, or to remit the matter for a fresh hearing at first instance.
http://www.lawlink.nsw.gov.au/scjudgments/2008nswca.nsf/09da2a0a2a27441dca2570e6001e144d/d1871a6a21eb3ad4ca2574a4001a63d6?OpenDocument
Are the findings of impairment by the Arbitrator binding on an Approved Medical Specialist assessing whole person impairment?
An Arbitrator has no jurisdiction to decide the medical dispute that he had referred to assessment. Therefore, he has no jurisdiction to make findings which were binding on the AMS or the Appeal Panel.

Workers Compensation Act 1987 (NSW)
Civil Liability Act 2002 (NSW)
1. What was the extent of P & H Property Service Pty Limited’s (“P&H”) contractual obligation to clean the area where the Plaintiff slipped and fell?

2. Did the Trial Judge err in his assessment of damages?
The majority (Bell JA and Rein J) held that P&H did have the contractual liability to clean the area once a day where the Plaintiff slipped. P&H had no contractual obligation to clean between 7.00am and 9.30am (the accident having occurred at 8.55am). P&H’s failure to clean between 7.00am and 9.30am was not a breach of contract. It followed that no breach of contract causally connected with the accident was demonstrated and that P&H were not liable to the Plaintiff in respect of his injury. Judgment against P&H was set aside not on the basis that they had inspected and cleaned the area 35 minutes before the accident but because the cleaners were not contractually bound to do so.

Hodgson JA dissented, stating accepted intervals for inspection as between P&H and Westfield was agreed at 40 minutes by conduct. Had an acceptable system of inspection been in place, the oil spillage would have been detected and dealt with. Hodgson JA would have dismissed P&H’s and Westfield’s appeal.
Hearne v Street
High Court of Australia
06/08/2008
Full Decision
Whether the use of documents prepared solely for court proceedings by employees or agents of a party who has provided an "implied undertaking" not to use those documents for purposes other than the litigation is guilty of a contempt of the court and whether that contempt is civil or criminal.
Agents or employees are themselves guilty of a contempt. It is civil not criminal.
Was the Employer entitled to issue a Direction for Production seeking records relevant to the Worker's claim for weekly benefits?
The Employer was entitled to have access to the primary source material evidencing the Worker's earnings.
http://www.lawlink.nsw.gov.au/scjudgments/2008nswca.nsf/09da2a0a2a27441dca2570e6001e144d/00d0ca43b5b1a995ca25749500085986?OpenDocument
Was the Worker entitled to compensation with respect to an injury that was commuted in circumstances where the deemed date of injury post dated the commutation agreement?
The commutation agreement brought an end to all entitlements including any entitlements with respect to injuries including skin cancer, where the deemed date of injury was after the date of the Commutation Agreement.

As there was no doubt that the worker’s skin cancer condition was an injury arising out of the nature and conditions of his employment with the employer, the commutation agreement of 30 March 2000 removed liability for the injury.
Workers Compensation Act 1987
1. Apportionment of damages between three Defendants.

2. Whether the damages awarded to the Plaintiff were excessive.

3. The application of Section 151Z of the Workers Compensation Act 1987.

4. Whether the indemnity clause in Australand’s favour applied.
Duty of care to an employee cannot be delegated.

An indemnity clause did not extend to a liability of the head contractor as the indemnity was confined. The head contractor was liable due to their own act of negligence.

As the employer was held partly liable, application of Section 151Z of the Workers Compensation Act was applied to reduce the Plaintiff’s damages.
New South Wales Fire Brigades v Newman [2008] NSWCA 82
New South Wales Court of Appeal
06/05/2008
Full Decision
http://www.lawlink.nsw.gov.au/scjudgments/2008nswca.nsf/32a6f466fc42eb68ca256739000a724d/d46a5ea80de81616ca25743c00022dca?OpenDocument
Can a claimant seek damages for an injury for which compensation has previously been awarded?
The Employer submitted that the Worker was not entitled to recover damages pursuant to Section 151Z(1)(c) of the Workers Compensation Act 1987 as damages had already been recovered.

The Court held that 'damages' is a reference to damages in respect of an injury. The previous payment was a payment of costs and not monetary compensation in respect of the claimant's injury.
Goodman Fielder Ltd v Hickson
Court of Appeal
24/04/2008
Full Decision
When an injured worker receives Worker's Compensation payments ('WC') from the Employer, and then sues a third party for damages, the WC insurer is entitled to recover the compensation payments made. What happens when there is settlement of a claim against a third party ' and there's no finding by the Court on the extent of contributory negligence? What proportion of past WC payments to the injured worker can the WC insurer recover?
Under Part 3 of Law Reform (Miscellaneous Provisions) Act 1965, all WC payments must be refunded to the WC insurer where there is a settlement of the damages claim against a third party.

Thus, once a claim is settled ' a Claimant cannot dispute the extent of contributory negligence (with the WC insurer) that should apply when calculating the repayment of the WC payments.

Unless the Claimant reaches a settlement with the WC insurer at the same time as they reach the settlement with the third party ' the full amount of compensation paid to date will be recoverable by the WC insurer.
Did the trial judge fail to give adequate reasons for critical findings of fact and critical decisions on issues such as apportionment and contributory negligence?

The Trial judge failed to give adequate reasons for some of the critical issues in the case.

In order for the court to refuse a new trial pursuant to SCR pt 51 r 23 the court could only properly do so that if it was satisfied that a new trial could not lead to a more favourable result for the Plaintiff.
Tweed Shire Council v Garrie Marriott
New South Wales Court of Appeal
08/07/2007
Full Decision

1. Was there a complete absence, or alternatively insufficient, evidence to support a finding of incapacity and consequent award of weekly compensation?

2. Was there a denial of procedural fairness?

3. Was there a failure to give adequate reasons?
In relation to the first ground of appeal, it was held that the Commission (Candy ADP) did not accept all the evidence tendered by the Worker or the Employer. The Commission was entitled to take this approach.

On the second ground of appeal was rejected.

Section 352(7) of the Workplace Injury Management and Workers Compensation Act 1998 (the “Act”) allowed the Acting Deputy President to revoke the decision under appeal and to make a new decision in its place.

On the final ground of appeal, it was held that the Commission gave sufficient explanations for finding that the Worker had a limited loss of capacity and gave appropriate reasons for arriving at the amount of compensation awarded.

The Employer’s appeal was dismissed with costs.

Whether Section 45 payments are apportioned for contributory negligence.
In the assessment of damages, (1) Section 45 payments should be included prior to any reduction for contributory negligence; and (2) prospective rather than historic tables should be used to calculate life expectancy.
Workers Compensation Legislation Amendment (Miscellaneous Provisions) Act 2005
Workers Compensation Act
The Act attempts to: reform the dispute resolution process undertaken by the Workers Compensation Commission; statutorily entrench the recommendations of the Hon. James Macken, AM, a former judge of the Industrial Commission of New South Wales in his review role of a WorkCover discussion paper; and to increase benefits payable to workers who suffer from spinal injuries.
The Act requires that notice be provided in relation to issues in dispute and that the commission can only hear disputes where notice has been given.
The act explands the definition of worker to include outworkers and labour hire contractors.
compensation payable for whole person impairment for injuries to the back are to increase by 5%.
Whether the actions of the Plaintiff, a worker, should be categorised as contributory negligence or as mere inattention, inadvertence, thoughtlessness or the like.
The Plaintiff was not guilty of contributory negligence as she had not departed from the standard of care of the reasonable worker. Her conduct constituted a risk that was excusable in the circumstances.
Common law workers compensation
Where an employer knew that an employee has an existing mental disorder, was it foreseeable that a stressful workplace would create a psychological injury?
Whilst it was foreseeable that the employee would suffer stress, it was not forseeable that the employee would suffer psychological injury.
The effect of the amendments to the Workers Compensation Act made by the Workers Compensation Legislation Further Amendment Act 2001,which commenced on 27 November 2001, to a claim for contribution and/or indemnity under Section 5 of the Law Reform (Miscellaneous Provisions) Act 1946 in circumstances where the subject injury occurred on 7 March 2000, proceedings were brought by the injured worker on 13 August 2001, and a Cross Claim filed by the Third Party ("B") against the employer ("C") of the 4 February 2003.

B was entitled to contribution from C with respect to damages it had paid to the injured worker on the basis that C's liablity to pay such damages would be assessed under the scheme in force prior to the amendments coming into effect on 27 November 2002.
Compensation Court Act 1984 (NSW)
Compensation Court Rules 1990 (NSW)
Guardianship and Administration Act 2000 (QLD)
Public Trustee Act 1978 (QLD)
Public Trustee Regulation 2001 (NSW)
WorkCover Legislation Amendment Act 1996 (NSW)
Workers Compensation Act 1926 (NSW)
Workers Compensation Act 1987 (NSW)
Workplace Injury Management and Workers Compensation Act 1998 (NSW)
Whether or not the Compensation Court had jurisdiction to order costs against the AJC with respect to a motion filed on behalf of the injured worker seeking to transfer funds from the Public Trustee of New South Wales to the Public Trustee of Queensland.
The AJC was not a proper party to the proceedings.

Its liability for the payment of compensation to the injured Worker in respect to weekly compensation, lump sums and medical expenses had been extinguished as a result of the redemption.

Accordingly the AJC had no interest in the outcome of the proceedings and, therefore, had no relevant submission to make to the Compensation Court. No order was or could be made against the AJC with respect to the subject matter of the motion.

Given that no substantive relief was sought against the AJC it should never had been considered by the Compensation Court as a Respondent to the notion of motion.

The Compensation Court had no power to order the AJC to pay the costs of the injured Worker and/or the Public Trustee in the proceedings.
Compensation Court Act 1984 (NSW)
Compensation Court Rules 1990 (NSW)
Guardianship and Administration Act 2000 (QLD)
Public Trustee Act 1978 (QLD)
Public Trustee Regulation 2001 (NSW)
WorkCover Legislation Amendment Act 1996 (NSW)
Workers Compensation Act 1926 (NSW)
Workers Compensation Act 1987 (NSW)
Workplace Injury Management and Workers Compensation Act 1998 (NSW)
Whether or not the Compensation Court had jurisdiction to order costs against the AJC with respect to a motion filed on behalf of the injured worker seeking to transfer funds from the Public Trustee of New South Wales to the Public Trustee of Queensland.
The AJC was not a proper party to the proceedings.

Its liability for the payment of compensation to the injured Worker in respect to weekly compensation, lump sums and medical expenses had been extinguished as a result of the redemption.

Accordingly the AJC had no interest in the outcome of the proceedings and, therefore, had no relevant submission to make to the Compensation Court. No order was or could be made against the AJC with respect to the subject matter of the motion.

Given that no substantive relief was sought against the AJC it should never had been considered by the Compensation Court as a Respondent to the notion of motion.

The Compensation Court had no power to order the AJC to pay the costs of the injured Worker and/or the Public Trustee in the proceedings.
Wood v State of NSW
NSW Court of Appeal
02/04/2004
Full Decision
Whether a Plaintiff who wishes to commence personal injury proceedings out of time must satisfy all of the criteria in section 60E(1) of the Limitations Act 1969.
The criteria contained in section 60E(1) are guidelines for the Court to utilise in exercising its discretion, not gateways through which the Plaintiff must pass to succeed.
Common law negligence
Had an employer breached a duty of care to an employee simply by issuing a direction which the employee could have attended to in any manner they saw fit?
There was no evidence to suggest that the employer's instructions required immediate action and it was not reasonable for the Plaintiff to put himself at risk while responding.
Did the Trial Judge err in failing to address insignificant evidence in his Judgment?

Should the Trial Judge have apportioned some liability to C as employer of M?
The Judge did not err in his application of the evidence. The evidence was documentary in nature and came to conclusions without addressing how those conclusions were formed. The Trial Judge was correct in preferring fist hand evidence.
Is it necessary for a Judge to formally apply the procedure required by s40 of the Act when determining an applicant's entitlements to weekly payments?
A Judge must strictly apply the proper procedure. The Judge must also ensure that the reasons given in his/her judgment establish that the proper procedure was undertaken.
Did the Trial Judge err in his interpretation of the contract?

Did the trial Judge err in constructing a term in the contract through the influence of precedent?
The Trial Judge erred in his construction of the contract. He failed to have regard to the precise wording of the clauses.

The Trial Judge erred in being influenced by precedent decisions. It was held that prcedent deccisions as to the construction of a term of contract cannot be followed unless the term is deemed to be a standard term.
Cuthbert v Thomson
NSW Court of Appeal
11/12/2003
Full Decision
Common Law
Contributory Negligence
C was employed by T and was injured when he threw fuel onto smoldering logs, which ignited and burnt him. At first instance contributory negligence was found at 45%. C appealed on that basis.
A 45% deduction in quantum due to contributory negligence was within the range of the Trial Judge's discretion, for an activity which in common knowledge was dangerous, and which C should have foreseen. Appeal dismissed.
CSR Limited & Anor v Thompson
Court of Appeal
26/11/2003
Full Decision
Civil Law (Wrongs) Act 2002 (ACT) ss34(1), 34(3), 35(2)
Civil Liability Act 2002 (NSW) ss32(1), 32(3), 33
Civil Liability Act 2003 (Tas) ss34(1), 34(3), 35
Civil Liability (Amendment) Act 2003 (WA) ss 5P(1), 5P(3), 5Q
Dust Diseases Tribunal Act 1989 s32(1)
Wrongs Act 1936 (SA) ss33(1), 33(2)
Dust decision Sullivan v Gordon damages
Claim for damages relating to contraction of mesothelioma.

Would the Court of Appeal be willing to grant leave for a re-argument of Sullivan v Gordon.

Are damages recoverable for a fear of contracting a disease before the Plaintiff actually sustains the disease and suffers any recoverable damage.
The Court was not willing to grant the Appellants leave to re-argue Sullivan v Gordon where a five judge bench had only recently been specially constituted to determine this issue.

The law only recognises claims for mental trauma, not involving a recognised psychiatric injury, when the mental trauma is associated with physical harm caused by negligence of the Defendant (parasitic claims). Furthermore, there is no reason by way of principle or policy that justifies holding that a Plaintiff, claiming damages for personal injuries caused by negligence, can recover damages for fear of contracting a disease before the disease is contracted and the Plaintiff suffers any recoverable damage.
How much specialised knowledge is required of an ‘expert' and will an expert be disqualified where they know one of the parties.
When considering whether someone is an expert, the Court is to turn its mind to whether the person’s evidence would assist the court.

There is no prohibition in Australia against experts giving evidence in cases involving their acquaintances.
Common law
Is it appropriate to request an adjournment in writing without appearing at Court?
Such applications “may be seen as an attempt to force an adjournment and frustrate the other party and the hearing of the matter... If a party chooses not to appear in Court, the party takes the risk that the proceedings may be heard ex parte.”
Ferguson v Maur
Supreme Court of South Australia
04/11/2003
Full Decision
General principles of negligence
The relationship between foreseeability and remoteness of damage.
Something cannot be said to be too remote if it is something which or should have been in the reasonable contemplation of the person at the relevant time.
Surf Coast Shire Council v Glenn Arnold Webb
Supreme Court of Victoria Court of Appeal
27/10/2003
Full Decision
General principles of negligence
Is the duty of care as between an employer/employee the same as that as between an employer and independent contractor?
The duty of care is analogous to that of an employer and employee however, the content of any such duty must be determined by reference to all relevant circumstances of the case.
Section 151Z(1)(d)
Indemnity from MVA CTP insurer
Does Section 151Z(1)(d) allow an employer, who has paid compensation to an injured Worker, to obtain an indemnity from the employer's Motor Vehicle Third Party Insurer for the compensation so paid in circumstances where the injured employee sustained his injury as a result of the negligence of a fellow employee who was driving a crane insured under the Third Party Policy?
An indemnity under Section 151Z(1)(d) can only be sought from the person with liability to pay damages in respect of injury. In the circumstances of this claim, the negligent fellow employee, and SRA, vicariously as his employer, were liable, not the insurer.

Accordingly, the employer was not entitled to an indemnity from its Third Party Motor Vehicle Insurer.
Tomes v Adams
NSW Court of Appeal
22/09/2003
Full Decision
Assessment of Damages
Motor Accident
Given a past history of back injury, can the Trial Judge's findings that an injured Plaintiff would recover from such injury stand?
Such a finding could not be made without supporting medical evidence.

In this case, no such evidence was tendered at trial.

Damages awarded by Trial Judge reduced.
H was injured in a motor vehicle accident. The trial judge found there was an injury, but that H did not satisfy the thresholds for damages.

Did the Trial Judge err by failing to have regard for certain medical evidence and being influenced by other matters contrary to the medical evidence?
The Trial Judge failed to have sufficient regard to medical evidence in finding that H did not satisfy the threshold s for compensation for non-economic loss and future economic loss.
Workers Compensation (General) Regulations 1995
Compensation Court Rules 1990 - Part 16 Rule 7
Workplace Injury Workers Compensation Act 1998 - s112
Costs
Can the Compensation Court make costs orders in a matter after an election to transfer proceedings to the Workers Compensation Commission has been filed?
There are no provisions in place to preclude the Court from exercising its powers to make costs orders following the filing of an election.
Motor Accidents Act 1988
s3,
s, 69
s47A
Motor Accidents (Amendment) Act 1995
Motor accident Employer liability
Whether direction of employer which results in injury to employee can require a CTP policy to respond where that direction was given because of a defect in a vehicle?
Sufficient for injury to be “a result of” a defect rather than “the result of” for CTP policy to respond.
M alleged injury to his back whilst employed by L between 1996 and 1998, and suffered a further back injury in subsequent employment in 1999
At first instance Cooper DCJ found the subsequent injury subsumed any pre existing disabilities.
• Whether there was sufficient evidence for the Court to found a subsequent injury subsumed all pre existing disabilities.
The medical evidence did not support the conclusion that the 1999 incident was a totally fresh injury which completely subsumed any pre existing disabilities, pain and suffering.
Bellach v MWAHS
New South Wales Court of Appeal
20/06/2003
Full Decision
Effect of a Deed of Release executed in separate proceedings
Employer liability
Does a Deed of Release signed by a Plaintiff in the context of unfair dismissal proceedings extend to provide protection to an employer in a separate claim for personal injury.
A Covenant in a Deed of Release signed in proceedings before the Industrial Relations Commission will not provide relief to an employer in a separate action for personal injury where consideration was not given by the parties to the personal injury action at the time that the Deed of Release was prepared and signed.
Rockdale Beef Pty Limited v Carey
NSW Court of Appeal
13/06/2003
Full Decision
independent contractor
duty of care
scope of duty
C had been employed by R for many years until his employment was terminated and he was re engaged as an independent contractor. R had control over Carey and directed him in his daily work.
C was injured at work.
Sorby DCJ found there was a duty owed to C, and it had been breached, although he found 40% contributory negligence.
What is the duty of care owed by an entrepreneur to an independent contractor?
Depending upon the factual arrangements, including care and control, the duty owed by an entrepreneur to an independent contractor may be as high as that owed by an employer to an employee and it is imperative that a safe system of work be provided.
Radosavljevic v Radin & Ors
Court of Appeal
10/06/2003
Full Decision
Solicitors' Professional negligence and general principles of negligence
District Court Act 1973 (NSW) s127
District Court Rules 1973 (NSW) Pt12 r4(c)
Whether the solicitor's negligence caused the loss alleged.

Whether damages for loss of opportunity were inadequate.
Although there was negligence by the solicitors this was not found to have resulted in loss to the Appellant as the negligence related to claims which were not viable. Damages awarded by the Trial Judge relating to one instance of negligence were not manifestly inadequate so were not altered on appeal.
Commonwealth of Australia v Diston
NSW Court of Appeal
22/05/2003
Full Decision
Application to extend limitation period. Plaintiff sustained injuries approximately 40-50 years ago whilst in the Navy. Established that he had been untruthful and some employment and medical records could not be found.

Whether the Judge had dealt with the Appeal from the Master correctly.

Was D's previous untruths and the loss of documents likely to amount to significant prejudice.
It will be of decisive importance if a Defendant can establish a real possibility of significant prejudice. Eg. Plaintiff an unreliable witness, lost documents. Application for extension refused.
Workers Compensation Act 1987
s. 10
journey claim,
onus of proof
If a worker is injured on a periodic journey and makes out a prima facie case, does the evidentiary onus in respect of proving or disproving a material increase in the risk of injury shift from the worker to the employer?
The onus shifts to the employer when a prima facie case has been made out by the worker. In order for the employer to succeed, the employer must show there has been a material increase in the risk of injury due to the deviation in the journey.
WCA s10(1B)
journey
drinking
* Was this a periodic journey?
* Was the worker under the influnece of alcohol
* Was the worker guilty of serious and wilful misconduct as defined
* The Applicant did not have the intention of gong directly home so this was not a periodic journey.
* His Honour also found the risk of injury was materially increased.
* His Honour found "notional" serious and wilful misconduct within the meaning of Section 10(1B)
Saad v J Robins & Sons Pty Limited
NSW Court of Appeal
17/04/2003
Full Decision
Workers Compensation Act
s151A(5)
s151D
Where a worker seeks to revoke an election to accept lump sum compensation under ss 66 and 67, what constitutes further material deterioration in the persons medical condition to allow a revocation of the election, and the pursuit of a common law claim for damages?
Saad’s original right wrist injury of 1990 worsened over time despite surgery. Lump sum payments pursuant to s. 66 and 67 were made in 1996. Saad’s condition deteriorated and spread from the wrist to the elbow and the insurer was aware of the worsening condition. s. 151A(5) allowed consideration of more then just the original site of injury (the wrist).
In this case reflex sympathetic dystrophy had worsened the condition of the whole of the right arm, sufficiently so that the Court allowed the revocation of the earlier election and granted an extension of time to commence Common Law proceedings.
Compensation Court Act s 17(4)
Workers Compensation Act: 1987 Section 66
Reconsideration of Consent Award
S applied for reconsideration of previous consent award, claiming there was further impairment, and that her previous solicitor and barrister had entered into the consent award without her instructions.

• What steps should be undertaken by an Applicant seeking reconsideration of a consent Award.
The Applicant's current solicitors had failed to take adequate steps in investigating the Applicant's prior proceedings and the settlement., and had failed to make any enquiry of S's former solicitor or barrister.

The Application for reconsideration was made without proper justification and S was ordered to pay the employer's costs.
Workers Compensation Act 1987 ss 59, 60
The worker was injured in 1972, losing the use of both legs and the right arm. The worker sought the expenses of f intended modification to a house he had occupied since 1987, which he did not own, but had a weekly tenancy from the Department of Housing.

He also sought the costs of maintaining the yard of the house and obtaining some handyman services.

What expenses were "Reasonably Necessary" pursuant to section 60.
The Court considered that there should be a wide reading on the term "reasonably necessary" in terms of s 60 of the Act. The Court found that the tenancy did not prevent the rented house from being inconsistent with the "worker's home", or "habitual residence" of the worker. As such, the proposed modifications needed to be considered apart from the prospect of the worker being moved from the housing as he was a tenant and not an owner.

The Court found that ‘home' does not just mean ‘house', and can apply to outside areas surrounding the building. However, the Court agreed with the trial judge that care of the worker in the home for the purpose of S 59 (1) did not allow grass or garden maintenance, even when it could be argued, on one view as ‘care". However, the Court did say that there may be some relief pursuant to the more recently legislated s 59(f1), which extends the definition of "domestic assistance services".
Occupational Health, Safety and Welfare Act, 1983
Workers Compensation Act, 1987
workers hired through employment agencies
Duty of care owed to workers hired from employment agencies.
Those hiring personnel from employment agencies have a non delegable duty of care analogous to that of an employer and employee.
Civil Liability Act 2002 (NSW)
dog attack
Whether scarring injuries following a dog attack entitled the Plaintiff to damages under the Civil Liability Act 2002.
Non-economic loss was assessed at 18% of a most extreme case ($9,000.00)
s.151C
denial of liability
Does denial of all liability involve a subjective or objective test?

Do workers compensation payments amount to a partial admission of liability?
The test is objective. Workers compensation payments do not constitute a partial admission of liability
Lapcevic v Collier
Court of Appeal
20/11/2002
Full Decision
s.151Z(2)
Does s151Z(2) operate to reduce damages awarded against a non employer as a result of an employer's negligence?
Damages were not reduced as the employer was entitled to be fully indemnified by the non employer pursuant to a lease.
s.151G, s.151H, s.151J, s.151M
Was there contributory negligence and a voluntary assumption of risk relating to a Go-kart racing accident?
Negligence against both employer and Oran Park established contributory negligence at only 10%
Zaronias v Papaiani
Ct of Appeal
31/07/2002
Full Decision
The indicia for what constitutes a worker
"A "volunteer" is not a "worker""
BHP Steel v Oliver
Court of Appeal
03/04/2002
Full Decision
Workers' Compensation Act 1926 (NSW) s.11.
equivalent section s.40
incapacity due to other causes
test is not narrow
Is a worker, having suffered a work related injury, entitled to weekly compensation, having left his pre-injury job for a non work related injury, even though but for the non work related injury he would be capable of doing his pre-injury job?
Yes, provided the work related injury has resulted in a partial disability on the open labour market.
Kushwaha v Queanbeyan City Council
Compensation Court
25/03/2002
Full Decision
"Was criticism for work performance discipline? Was the employer's action "reasonable"? "
"Discipline' must be read widely...the employer offered to assist with training, counseling. The employer's actions were reasonable and hence her psychological injury was not compensable "
s.38A(2), s.38A(7), s.43A,s.43A(1)(c), s.43A(1)(h),s.52A(1)(a), s66
When is a worker seeking suitable employment?
A worker can be deemed to be 'seeking' suitable employment when taking reasonable steps to obtain such employment from someone other than the original employer, providing the worker shows a continuing intention to find suitable employment but cannot actively seek it because they suffer temporary, non work related, total incapacity.
Itex Graphix Pty Limited v Elliott
NSW Court of Appeal
11/02/2002
Full Decision
Whether leave to commence a damages claim should be granted ... although it was brought in excess of three years after injury and the employer suffered no prejudice.
The injured worker had made an informed decision within the limitation period not to bring an action. No special circumstances demonstrated. Special leave to High Ct not granted
Whether damages must be assessed separately for each injury.
Answered in the affirmative
Whether an injury caused by the absence of a mechanical lifting device on a loading ramp is covered by the CTP policy: specifically whether there was relevantly a defect in the vehicle.
The injury was covered by the policy in that there was a defect in the vehicle as it was not fit for the purpose for which it was designed or the use to which it was intended to be put.
s.66
s.67
s.71
Whether two or more losses of hearing may be added together to qualify for s.67
Worker could not agglomerate two separate losses of hearing




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Recent developments in Case law Detailed versions

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Decision / More Info Legislation The question raised The new position
ADCO Constructions Pty Ltd v Goudappel
[2014] HCA 18
16/05/2014
High Court of Australia
French CJ, Crennan, Kiefel, Gageler and Keane JJ
NSW Court of Appeal
Bathurst CJ, Beazley P and Basten JA
Workers Compensation Commission of NSW
Keating J
Workers Compensation Act 1987 (NSW)
Workers Compensation Legislation Amendment Act 2012 (NSW)
Workers Compensation Regulation 2010 (NSW)
Whether the disentitling provisions under the 2012 amendments to the Worker’s Compensation Act 1987 (NSW) (“the Act”) affecting claims for permanent impairment apply to prevent a worker from claiming compensation arising under s.66 when the worker had previously made a claim under the WCA for the same injury prior to the enactment of the amendments.

The High Court was asked to determine an appeal from the NSW Court of Appeal finding that the 2012 amendments does not apply to a claim for s.66 lump sum compensation where a worker has made a claim for compensation prior to 19 June 2012.
The decision turned on the validity and effect of Cl 11 of Sched 8 Workers Compensation Regulation 2010 (NSW) (“Cl 11 of the Regulation”) on Part 19H of Sched 6 of the WCA relating to the transitional provisions for claims for permanent impairment under the 2012 amendments (“the WCA Transitional Provision”).

The WCA Transitional Provision provided that:

An amendment made by Workers Compensation Legislation Amendment Act 2012 (NSW) (“the 2012 Amendment Act”) extends to a claim for compensation made on or after 19 June 2012, but not to such a claim made before that date.

The effect of the WCA Transitional Provision was to protect the entitlements of workers who had claimed compensation before 19 June 2012 from the disentitling effect of the amendments.

The NSW Government was concerned with the wording of the WCA Transitional Provision and sought to reverse its effect by introducing Cl 11 of the Regulation which provided that:

The amendments made by the 2012 Amendment Act (i.e. the disentitling provisions) extends to a claim for compensation made before 19 June 2012, but not pre-2012 claims that specifically sought compensation under s.66 or s.67 of the WCA.

The effect of Cl 11 of the Regulation was to apply the disentitling provisions of the 2012 Amendment Act to all new claims for permanent impairment compensation, regardless of whether the Worker had made a claim before 19 June 2012 or not.

The issue was whether the effect of the WCA Transitional Provision was validly displaced by Cl 11 of the Regulation in extending the disentitling operation of the 2012 Amendment Act to claims for compensation made before 19 June 2012 except for claims which “specifically sought” permanent impairment compensation.

The NSW Court of Appeal had found that Cl 11 of the Regulation sought to prejudicially affect the right of a worker to bring a claim for s.66 & s.67 and that it was beyond power and invalid. The NSW Court of Appeal stated that the right of a worker to seek compensation under s.66 of the WCA arises at the time of the injury and that the effect Cl 11 of the Regulation was to disentitle the worker to this right making it retrospective and invalid in displacing the WCA Transitional Provision.

The High Court Findings

The High Court found that Cl 11 of the Regulation was valid and applied to displace the WCA Transitional Provision ensuring that the disentitling provisions of 2012 Amendment Act applied to any claims for compensation made before 19 June 2012, except for claims which “specifically sought” s.66 & s.67 permanent impairment compensation.

The Validity of a Regulation to Alter a Provision of the Act

The High Court in coming to their decision found that there was no dispute that s.280(1) of the Act permitted the making of a regulation containing a provision which has the effect of altering the operation of a provision of the Act.

The Validity of the Retrospective Effect of Cl 11 of the Regulation

The main issue in the appeal was the extent to which s.280(1) of the Act on its proper construction permits a provision such as Cl 11 of the Regulation to have retrospective operation.

The High Court referred to the general common law principle that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to fact or events that have already occurred in such a way as to confer or impose or otherwise affect the right or liabilities which the law had defined by reference to past events.

The High Court found that both s.280(1) of the Act, in conferring power to make Cl 11 of the Regulation, and Cl 11 of the Regulation expressed, with reasonable certainty, a “contrary intention” to impose new provision on pre-existing rights and liabilities.

With respect to Cl 11 of the Regulation, the High Court found that the regulation clearly seeks to apply to a class of claims, which had been governed by the Act as it existed before the enactment of the 2012 Amendment Act, to be governed by the Act as amended by the 2012 Amendment Act. It thereby expresses a contrary intention to empower the Act so as to confer power to make a regulation which alter pre-existing rights and regulations by imposing the disentitling provisions of the 2012 Amendment Act on rights and liabilities arising prior to 19 June 2012.

Accordingly, the High Court found that Cl 11 of the Regulation was valid in altering the effect of the WCA Transitional Provision.

The consequence being that if a claim for permanent impairment is not specifically sought before 19 June 2012 then it will be subject to the disentitling provisions of the 2012 amendments (namely, no compensation for pain and suffering; the application of the s.66 threshold of 10%WPI and limiting claims of permanent injury to one claim per injury).

Appeal allowed.

Comcare v PVYW
[2013] HCA 41
30/10/2013
High Court of Australia
French CJ, Hayne, Crennan, Kiefel, Bell and Gageler JJ
Full Court of Federal Court of Australia
Keane CJ, Buchanan, Bromberg JJ
Federal Court of Australia
Nicholas J
Safety, Rehabilitation and Compensation Act 1988 (Cth)
The respondent was a Commonwealth government employee who had been required to visit a regional office with another employee to observe the budget review process and undertake training. The respondent had been required to stay overnight at a motel booked by her employer. During the course of the evening at the motel, the respondent engaged in sexual intercourse with an acquaintance. In the act, a glass light fitting above the bed was pulled from its mount by either the respondent or her acquaintance striking the respondent on the nose. The respondent suffered physical and subsequent psychological injury.

At first instance, the respondent argued that because she was at a particular place (the motel) at the instigation of her employer, her injuries were suffered in the course of her employment and were compensable, absent any gross misconduct on her part. It was an agreed fact that the respondent’s action did not amount to misconduct.

The Administrative Appeals Tribunal of NSW found against the respondent at first instance. The respondent was successful in having the decision set aside in the Federal Court. The Full Court of the Federal Court (“the Full Court”) dismissed the Applicant’s further appeal.

The subject of the appeal to the High Court was the Full Courts’ application of the principal established in Hatzimanolis v ANI Corporation Ltd (“Hatzimanolis”) which prescribed the circumstances in which injuries to employees, which did not occur during periods of actual work, would nevertheless be treated as arising in the course of employment.

The following passage of the Hatzimanolis judgment was relied upon by the respondent as setting out the relevant test:

“The modern cases show, that absent gross misconduct on the part of the employee, an injury occurring during such an interval or interlude will invariably result in a finding that the injury occurred in the course of employment….[if] the employer has induced or encouraged the employee to spend that that interval or interlude at a particular place or in a particular way.”

The Full Court rejected Comcare’s argument that in order to satisfy the Hatzimanolis test, an injured employee must establish two elements: that the injury occurred at a place he or she was encouraged to be and that the activity from which the injury arose was induced or encouraged by the employer, or was impliedly accepted.

The Full Court held that Hatzimanolis stated a single test, which may be satisfied on proof of either element. The Full Court held that it was sufficient for the satisfaction of the Hatzimanolis test to show that the injury occurred at a place which the employer had required or encouraged the employee to attend.

The respondent’s argument on Appeal to the High Court was that whether she had been induced or encouraged by her employer to engage in the activity that resulted in her injury was irrelevant on the basis that she was required by her employer to be present at the place where she was injured.
(French CJ, Hayne, Crennan & Kiefel JJ) The majority of the High Court rejected the position that, absent any misconduct on the part of an employee, an employer who requires an employee to be present at a particular place away from their usual place of work will be liable for any injury which the employee suffers while present there. Even though the injury may have been incurred in the course of an activity that which was entirely unrelated to the employment.

The majority stated that such a position:

“…would need to be reconsidered because it would otherwise effect an undue extension of an employer’s liability to pay compensation…”


The majority outlined the following considerations to be taken into consideration in determining whether an injury was suffered in the course of employment:

1. Firstly, did the employee suffer an actual injury; and

2. Secondly, the employee must have been either engaged in an activity or present at a place when the injury occurred. Therefore:

i) Did the injury occur at and by reference to a place? or

ii) Did the injury occur while the employee was engaged in an activity?

The majority of the High Court stated that an injury may be regarded as having been sustained in the course of an employee’s employment:

3. Where an injury was suffered by an employee whilst engaged in an activity in which the employer had induced or encouraged the employee the employee to engage; or

4. Where an injury was suffered at and by reference to a place where the employer had induced or encouraged the employee to be.

The majority's decision is summarised in the following exert:

“…that for an injury occurring in an interval in a period of work to be in the course of employment, the circumstance in which an employee is injured must be connected to the inducement or encouragement of the employer. An inducement or encouragement to be at a particular place does not provide the necessary connection to employment merely because an employee is injured whilst engaged in an activity at that place”

(Bell J in dissent): Bell J was of the dissenting view that the Full Court in Hatzimanolis had concluded that the rational development of the law required the reformulation of the principle to conform to the “current conception” of the “in the course of employment.”

Bell J held that the Full Court did this when they proceeded on the “organising principle” that an injury is more readily seen as occurring in the course of employment when it is sustained in an interval occurring within an overall period or episode of work than when it is sustained in an interval between two discrete periods of work.

Bell J notes that consideration of the connection between the circumstances of the injury and the employment relation is not within this “organising principle” that the Full Court formulated in Hatzimanolis. Bell J states:

“To incorporate it [i.e. consideration of the circumstances of the injury] into that principle would be to return to refinements of a kind that Hatzimanolis laid to rest”

Bell J finds that while Hatzimanolis may have served to extend employer’s liability for injuries occurring outside the workplace, the tests provides for clear and workable guidance in the determination of whether injury is within the course of employment. Bell J states:

“To superimpose on the test consideration of the connection between the circumstances of the injury and the employment relation would be to add complexity at the cost of certainty and consistency.”

(Gageler J in dissent): Gageler J was essentially of the same dissenting opinion as Bell J in stating:

“The approach reflected in the Hatzimanolis principles accords with a contemporary understanding of the employment relationship, which respects the privacy and autonomy of an employee as consistent with continuation of employment. Gone is the artificial fragmentation of an interval or interlude in an overall period or episode of work spent by an employee at a particular place at the inducement or encouragement of an employer into yet shorter periods of time each of which is to be further separately accounted for and discretely related to the employment relationship. Gone also is the intrusive inquiry that such artificial fragmentation entails into personal choices made by an employee, hour-by-hour or minute-by-minute, during an interval or interlude. In its place, it is sufficient for an injury sustained by an employee during an interval or interlude in an overall period or episode of work to be in the course of the employee's employment that (to adapt Lord Loreburn's language) the employee is where the employee would not be but for his or her employment, and is doing what a man or woman so employed might do without gross impropriety.”

Accordingly, Gageler J found that the particular activity in which the respondent was engaged at the time she was injured was not a relevant consideration for the purpose of applying the Hatzimanolis test.
Goudappel v ADCO Constructions Pty Ltd
[2013] NSWCA 94
29/04/2013
New South Wales Court of Appeal
Bathurst CJ; Beazley P; Batsen JA
Workers Compensation Commission
Judge Keating

Workers Compensation Act 1987 (NSW)
Workers Compensation Legislation Amendment Act 2012 (NSW)
Workers Compensation Amendment (Transitional) Regulation 2012
Workplace Injury Management and Workers Compensation Act 1998 (NSW)
Interpretation Act 1987 (NSW)
The Worker suffered an injury at work on 17 April 2010. The Worker had made a claim for compensation against his employer prior to 19 June 2012.

The Worker made a further claim for s.66 lump sum compensation for 6% Whole Person Impairment after the 2012 amendments to the Workers Compensation Act 1987 (NSW) (the “Act”) had come into effect.

The amendments to lump sum compensation introduced by the Workers Compensation Legislation Amendment Act 2012 (NSW) are as follows:

1. Prior to the changes the threshold for a claim under s.66 of the Act for lump sum compensation for permanent impairment was 1%. The threshold is now 10%.
2. Lump sum compensation for Pain and suffering under s.67 of the Act has now been abolished.
3. A worker is now limited to only 1 claim for lump sum compensation per injury.

The question before the NSW Court of Appeal was whether the 2012 amendments apply to prevent the Worker from claiming for compensation arising from permanent impairment under s.66 and s.67 when the Worker has previously made a claim under the Workers Compensation Act for the same injury prior to the enactment of the amendments.
The decision turned on the wording of “claim for compensation”.

The transitional provisions relating to lump sum compensation provide (found in Part 19H of Schedule 6 of the Act) provide:

An amendment made by Schedule 2 to the 2012 amending Act extends to a claim for compensation made on or after 19 June 2012, but not to such a claim made before that date.

The Court of Appeal found that the term “claim for compensation” refers to a claim for any monetary benefit under the Act or the Workplace Injury Management and Workers Compensation Act 1998 (NSW).

The NSW Court of Appeal found that the Worker had made his “claim for compensation” on 19 April 2012, three months before the critical date of 19 June 2012.

Following the enactment of Part 19H of Schedule 6 of the Act, its seems that the NSW government realised that there may be an issue with respect to the wording of the above transitional provision, and sought to introduce a further transitional provision on October 2012, which states (found in Workers Compensation Amendment (Transitional) Regulation 2012 (NSW):

(1) The amendments made by Schedule 2 to the 2012 amending Act extend to a claim for compensation made before 19 June 2012, but not to a claim that specifically sought compensation under section 66 or 67 of the 1987 Act.

(2) Clause 15 of Part 19H of Schedule 6 to the 1987 Act is to be read subject to subclause (1).

The NSW Court of Appeal found that to the extent that the above transitional regulation seeks to prejudicially affect the right of a Worker to bring a claim for s.66 & s.67, the transitional regulation is beyond power and invalid.

The NSW Court of Appeal also referred to the general principle, the right of a Worker to seek compensation under s.66 of the Act arises at the time of the injury.

From the above reasoning, the NSW Court of Appeal overturned the decision of the President of the Workers Compensation Commission and found in favour of the Worker, finding that the Worker was not prevented from bringing a claim for permanent impairment even though the claim for permanent impairment was brought after 19 June 2012.

The significance of this case is that if a Worker made a claim for compensation before 19 June 2012 (whatever this claim for compensation may have been – e.g. weeklies, s.60’s etc), the 2012 amendments do not apply to the Worker’s claim for compensation in respect of an injury that results in permanent impairment, regardless of whether or not the previous claim specifically sought compensation under s.66 or s.67 of the Act.

As a further note - WorkCover was an intervening party in these proceedings and made submissions in support of the Defendant's position, submissions that the NSW Court of Appeal ultimately rejected.
QBE Insurance (Australia) Limited v CGU Workers Compensation (NSW) Limited
[2012] NSWSC 377
20/04/2012
Supreme Court of New South Wales
Beech-Jones J



Motor Accidents Compensation Act 1999 (NSW)
Workers Compensation Act 1987 (NSW)
Workers Compensation Regulation 2010 (NSW)
QBE was the CTP insurer of a forklift involved in an accident in which Peter Horwood (Horwood), an employee of Megbuy Pty Limited (Megbuy), was injured. The registered owner of the forklift was Levira Pty Limited (Levira). Horwood commenced common law proceedings against Megbuy, claiming damages pursuant to the Motor Accidents Compensation Act 1999 (NSW) (MACA) on the basis that he contended Megbuy was an owner of the forklift as well as his employer.

QBE conducted the defence of Horwood’s claim against Megbuy. After admitting that Megbuy was an owner of the forklift and liable for the accident, QBE negotiated a settlement of Horwood’s claim against Megbuy in the sum of $1.5 million inclusive of costs and workers compensation payments.

QBE sought a 50% contribution towards the settlement sum from CGU, the workers compensation insurer of Megbuy, pursuant to the principles of dual insurance.

CGU resisted QBE’s claim on a number of grounds including, amongst others, that Megbuy was not an owner of the forklift and Horwood did not sustain an injury within the meaning of MACA. QBE contended that it only needed to establish that the settlement it reached with Horwood on behalf of Megbuy represented a reasonable compromise with respect to these issues.
The claim was similar to Zurich Australian Insurance Limited v GIO General Limited [2011] NSWCA 47 (Zurich v GIO). In that case, GIO resisted a claim for equitable contribution on the basis that, amongst other grounds, it contended Zurich had indemnified Caringbah Bus Services Pty Limited (Caringbah) for its liability to a claimant who was injured when operating a coach and trailer in circumstances where Caringbah was not the owner and therefore had no liability to the claimant. The New South Wales Court of Appeal held that Zurich was entitled to equitable contribution and held that:

if the liability of the first insurer’s insured has been judicially determined or has been the subject of a reasonable compromise, that suffices for contribution, and the second insurer cannot put in issue in contribution proceedings the liability of the common insured.

In these proceedings, the Court was required to determine the correctness and scope of the above statement. The court, constituted by a single Judge, considered itself bound by Zurich v GIO and held that QBE was only required to establish that the settlement sum of $1.5 million represented a reasonable compromise of any liability Megbuy had to Horwood under MACA. However, the necessary elements of QBE’s and/or CGU’s liability to indemnify Megbuy for their liability to Horwood had to be proven by QBE in the contribution proceedings. A reasonable compromise on these issues would not suffice.

Difficult questions of characterisation ensued in applying these principles as there was some overlap between matters affecting Megbuy’s liability to Horwood and matters affecting the nature and scope of QBE and CGU’s liability to indemnify Megbuy.

The Court held that as Megbuy’s ownership of the forklift was a necessary element of QBE’s obligation to indemnify Megbuy for Horwood’s claim and ascertaining the scope of cover provided by CGU (either whether it would indemnify Megbuy for damages assessed pursuant to MACA or significantly lesser damages assessed pursuant to the Workers Compensation Act 1987 (NSW)), QBE needed to prove this matter.
Ultimately, it was able to do so.

Whether Horwood suffered an injury within the meaning of MACA involved a number of elements. It was held that the “fault” element could not be re-litigated afresh if the Court was satisfied there was a reasonable compromise of liability. However, the other elements of the definition of “injury” needed to be proved by QBE to establish that the settlement was reasonable. On the facts of the case, QBE was able to do so.

Accordingly, the Court found that each of QBE’s CTP policy and CGU’s workers’ compensation policy covered the identical loss (ie liability to Horwood) that the common insured (ie Megbuy) sustained such that QBE was entitled to equitable contribution from CGU for the settlement sum it paid to Horwood on behalf of Megbuy.

The case serves as a reminder that a claim for equitable contribution between insurers may succeed on the basis of an extended application of dual insurance. It also addresses the extent to which certain issues need to be proved in dual insurance claims where the second insurer has not made any concessions in respect of a settlement of a claim against the common insured. It is only necessary to prove a reasonable compromise of the common insured’s liability. However, each insurer’s liability to indemnify the common insured in respect of that liability needs to be actually established for a dual insurance claim to succeed.
Denis Whiting v JDS Engineering & Labour Services Pty Ltd
[2010] NSWCA 28
04/03/2010
New South Wales Court of Appeal
Basten JA and Macfarlan JA
District Court of New South Wales
Sidis DCJ

Workers Compensation Act 1987 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
The Appellant Worker claimed that he was injured on 6 February 2003, during the course of his employment with the Respondent Employer at the Bulga Coal Mine.
On 14 November 2004, the Appellant commenced proceedings in the Cessnock District Court claiming lump sum compensation pursuant to Section 66 of the Workers Compensation Act (1987) NSW.
On 19 April 2005, the Appellant filed a Work-Injury Damages (WID)claim against the Respondent in the Cessnock District Court arising out of the same injury.
Sidis DCJ dismissed the Appellant’s WID claim on 11 August 2005 without an actual hearing taking place, on the basis that the claim for Section 66 “permanent loss compensation” had constituted an election, for the purposes of s 151A of the WCA, which precluded the Appellant from pursuing a claim for damages.
On 2 July 2009, the Appellant sought leave to appeal against the judgement of Sidis DCJ given on 19 April 2005 and accordingly required an extension of time to be granted in order to proceed with the Appeal.
There was no issue with respect to the merit of the Appellant’s Appeal against the decision of Sidis DCJ, and the issues in dispute were as follows:
1. Was there a reasonable explanation for the Appellant’s delay in bringing an Appeal out of time;
2. Was that explanation for the delay in bringing the Appeal adequate in the circumstances; and
3. Whether the nature of the substantive claim and its prospects of success are relevant to the issue of whether an extension of time should be granted.
It was determined by the Court of Appeal that in “rare cases” such as this one, the limitation period of 28 days should and may be extended to four years. However any power to extend time, as noted in the decision in the earlier NSW Court of Appeal decision in Tomko v Palasty (No 2) [2007] NSWCA 369, may be exercised at “any time” by the Court in accordance with rule 51.10(2) of the Uniform Civil Procedure Rules 2005 (NSW).
The reason why the Court considered this case to be “rare” was that the Appellant’s former solicitors had failed to advise him correctly with respect to the “election” he had made by making a claim for lump sum compensation, prior to lodging a claim for WID. The Appellant subsequently commenced proceedings against his former solicitors claiming they were negligent in failing to advise him properly with respect to his workers compensation rights.
In addition to UCPR regulations, there were several factors that suggested this is an exceptional case and therefore leave should be given for the Appellant to lodge their appeal well out of time.
The Court found the following factors justified an extension of time being given to the Appellant to lodge their Appeal out of time:
1. The Appellant’s initial claim for damages was commenced within the limitation period; the Court held that is more likely to grant an indulgence where proceedings have been commenced than where the indulgence relates to proceedings which were never commenced;
2. The Appellant’s failure to lodge an appeal against the dismissal by Sidis DCJ did not leave the Respondent in possession of a written judgement, but rather allowed the Respondent to avoid a trial and canvas of the issues in dispute; and
3. The dismissal by the lower Court based on a (erroneous) point of law was reached as a consequence of a positive step taken by the Respondent in having the claim dismissed without a hearing on the merits.
These factors, taken with the absence of any disentitling conduct on the part of the Appellant Worker and with the absence of any demonstration of actual prejudice, warrant the grant of an extension of time being given to the Appellant.
The Court was not persuaded that an extension of time would not lead to a real chance of an unfair trial of the substantive issues, despite the lapse of a significant amount of time.
Watson v Qantas Airways Limited
[2009] NSWCA 322
08/10/2009
New South Wales Court of Appeal
Allsop P, Beazley JA, McColl JA, Basten JA, Handley AJA
Workers Compensation Commission
Deputy President Byron

Workers Compensation Act 1987 (NSW)
Workplace Injury Management and Workers Compensation Act 1998 (NSW)
The Appellant (Worker), a pilot, was injured in a motor vehicle accident whilst on a layover in LA. The Appellant bought proceedings against the Respondent (Employer) in the Workers Compensation Commission (“the WCC”) for worker’s compensation benefits. The Arbitrator upheld the Appellant’s claim for worker’s compensation benefits consequent upon the injury. On appeal, the decision was overturned by the Presidential Member. It was found that the Appellant was not in the course of his employment when the MVA took place, nor did the accident arise out of his employment. The Appellant appealed against the decision of the Deputy President.

The question on appeal was whether the Deputy President erred in finding that the Arbitrator had not properly dealt with the question of whether the Applicant’s injuries arose out of or in the course of his employment.
The majority [Allsop P, Beazley JA, McColl JA and Handley AJA] referred to the High Court’s earlier decision in Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; 173 CLR 473 (“Hatzimanolis”).The majority held that the Deputy President erred in his determination as he failed to apply the reformulated test set out in Hatzimanolis.

The correct approach in determining whether an employee’s injury could be characterised as occurring “in the course of employment” was the test set out in Hatzimanolis.

The test firstly requires a determination or characterisation of the period, or periods, of work of the employee as one overall period or episode of work, or two or more. This is what the majority in Hatzimanolis viewed as central.

It is therefore erroneous for a decision maker to observe aspects of, and the employer’s attitude to, how the period of work is spent before characterising the period of work. After the employee’s period of work is characterised, the circumstances of what transpired are to be analysed within that framework.

In accordance with the principles of Hatzimanolis, generally, unless the employee is guilty of gross misconduct, an injury incurred during an interval in an overall period or episode of work will be perceived as occurring in the course of employment in those instances where the employer has (expressly or impliedly) persuaded or encouraged the employee to spend the interval at a particular place or engage in a particular activity. Thus, the task of the Commission is to approach these types of matters with the assistance of Hatzimanolis.

The error of law arose from the Deputy President’s failure to direct himself in accordance with the reformulated test in Hatzimanolis.
Badawi v Nexon Asia Pacific Pty Ltd t/as Commander Australia Pty Limited
[2009] NSWCA 324
08/10/2009
New South Wales Court of Appeal
Allsop P, Beazley JA, McColl JA, Basten JA, Handley AJA
Workers Compensation Commission
Keating DCJ

Workers Compensation Act 1987 (NSW)
Workplace Injury Management and Workers Compensation Act 1998 (NSW)
The Appellant (Worker) sustained a knee injury whilst she and her supervisor were on a business trip at Perisher Blue Ski Resort. The Appellant brought proceedings against the Respondent (Employer) in the Workers Compensation Commission (“the WCC”).The Arbitrator upheld the Appellant’s claim for workers compensation benefits.

On appeal, the decision was overturned by the President who held that the Appellant’s employment was not a substantial contributing factor to the injury [section 9A of the Workers Compensation Act 1987 (NSW)].The Appellant appealed against the decision of the Presidential Member.

The primary question that arose was whether the Presidential Member erred in the application of s9A.
The majority [Allsop P, Beazley JA and McColl JA] held that:

1. The test for an injury “arising out of” employment under ss 4 and 9 and for employment being a “substantial contributing factor” under s 9A must be considered separately. It is not sufficient to find that the injury arose out of employment and to therefore conclude that the employment concerned was a substantial contributing factor to the injury.

2. The meaning of an injury “arising out of” employment for the purposes of ss 4 and 9 is settled. An injury arises out of employment if the fact that the claimant was employed in the particular job caused, or to some material extent contributed to the injury. The phrase involves a causative element and is to be inferred from the facts as a matter of common sense.

3. The phrase “substantial contributing factor” in s 9A also involves a causative element. It is a different or added requirement to the “arising out of” employment limb of ss 4 and 9, however the causal connection required for s 9A is not less stringent than that found in s 9. Mercer was not followed in this regard.

4. For employment to be a “substantial contributing factor” to the injury for the purposes of s 9A the causal connection must be “real and of substance”. The language of the section is not to be confused with interpretations such as “large”, “weighty” or “predominant.

5. “Employment” for the purposes of s 9A is the same “employment” that is under consideration in ss 4 and 9.

6. In determining whether the worker’s employment was a substantial contributing factor, the matters specified in s 9A(2) must be taken into account to the extent that they are relevant.

7. Section 9A(2)(b) directs attention to the nature of the work performed and the particular tasks of that work and not to what the employee was doing at the actual time of the injury. It is an incorrect approach to consider some other activity other than the employment that had preceded the injury and then seek a linkage with the employment from the standpoint of that preceding activity.

8. The President's failure to consider s 9A(2)(b) by reference to the work performed and the particular tasks of that work involved a misconstruction of the provision and was an error of law.

9. Once it is accepted that “substantial” means “in a manner that is real or of substance”, the only answer when the test is applied to the facts of this case is that the contribution of the appellant’s employment to her injury was real or of substance.

The Appeal was allowed.
Kurnell Passenger & Transport Service Pty Ltd v Randwick City Council
[2009] NSWCA 59
20/03/2009
Court of Appeal
Giles JA, McColl JA and Basten JA
Supreme Court
Simpson J

Workplace Injury Management and Workers Compensation Act 1998 (NSW)
Workers Compensation Act 1987 (NSW)
Accident Compensation Act 1985 (Vic)
Judiciary Act 1903 (Cth)
Uniform Civil Procedure Rules 2005 (NSW)
On 7 July 1995, a bus owned by Kurnell Passenger & Transport Pty Ltd ("Kurnell") struck Mr Castillo whilst on his way to work. At that time Mr Castillo ("Castillo") was employed by Randwick City Council ("Randwick"). Castillo was entitled to workers compensation payments from the Council pursuant to the Workers Compensation Act 1987 (NSW) ("the Act"). In 2006, Randwick brought proceedings against Kurnell, seeking indemnity pursuant to s151Z(1)(d) of the Act with respect to payments made to Castillo.

Kurnell wanted to arrange medical assessment of Castillo to assess the extent of his injuries. Kurnell had no express power to compel Castillo to attend but argued that Randwick had the power under s119 of the Workplace Injury Management and Workers Compensation Act 1998(NSW).

The issues for determination were:

1.Whether s119 provided a mechanism by which an employer can require a worker to submit to a medical examination by a putative tortfeasors' medical expert for the purpose of s151Z(1)(d) proceedings;

2.Whether the WorkCover guidelines in relation to Independent Medical Examinations and Reports (2006) restricts the operation of section 119.

3. If the putative tortfeasor cannot use section 119(2) in the manner proposed, whether the conferral of jurisdiction, with respect to section 151Z(1)(d) indemnification proceedings, on a court capable of exercising judicial power under Chapter III of the Constitution, is invalid.
Section 119 of the Act expressly relates to claims for compensation. It permits an employer to require a worker to submit to an independent medical examination only with respect to compensation paid pursuant to the Act.

The majority held that s151Z(d) proceeding are claims with respect to indemnity and not compensation. Given that the proposed medical assessments were purely for the purpose of s151Z proceedings, they was found to be extraneous to the statutory purpose of s119.

On that basis the Court of Appeal held that parties to proceedings brought under section 151Z(1)(d) have no right to compel a worker to attend an independent medical examination.

In dissent, Mc Coll JA was of the opinion that the appeal should be allowed for the following reasons:

1. A construction of section 119(2) which means the employer cannot use the provision to have a worker to whom it is paying compensation under the 1987 Act medically examined for the purpose of establishing the quantum of the fund with respect to which it can exercise its rights under s151Z(1)(d) for statutory indemnity would be capricious and unjust.

2. The legislature intended s119(2) to form part of the bundle of rights and obligations which arose once the employer became liable to pay compensation for injuries. These rights and obligations include rights and liabilities created by s151Z(1)(d) proceedings.

3. The putative tortfeasor can avail itself of the employer's right to require the worker to submit to medical examinations.

Tan v National Australia Bank Limited
[2008] NSWCA 198
21/08/2008
Court of Appeal
Basten JA, Bell JA, Young CJ
Compensation Court
Fleming DP
Workers Compensation Commmission
Arbitrator
s.11 Workers Compensation Act 1987
s.254 Workplace Injury Management and Workers Compensation Act 1998 (NSW)
s.260 Workplace Injury Management and Workers Compensation Act 1998 (NSW)
s.352 Workplace Injury Management and Workers Compensation Act 1998 (NSW)
s.353 Workplace Injury Management and Workers Compensation Act 1998 (NSW)
The appellant filed an Application to Resolve a Dispute in the WCC. The application was heard by an Arbitrator, who held that the Employer succeeded on its s 11A defence in relation to injuries suffered in July 2003, but that the Worker was entitled to succeed as a result of a "further injury" suffered on 5 April 2004, being not merely an exacerbation of her earlier condition, but a separate and new injury.

The Worker and the Employer both appealed to a Deputy President of the WCC. The Employer succeeded in setting aside the latter determination on the basis that there was no "claim" in relation to the April 2004 injury. The Deputy President also decided that the Employer had suffered procedural unfairness in the consideration by the Arbitrator (and resultant finding in favour of the Worker) of a further injury which the Employer had not had an opportunity to investigate.

Will a failure by the Worker to properly articulate their claim (eg: aggravation to injury as opposed to injury) constitute a bar to compensation on the basis that s 260 of the Workplace Injury Management Act has not been complied with?

Whether the Deputy President of the WCC erred in law when she dismissed the appeal after finding that there was a denial of procedural fairness to the Employer.
A "claim" will still constitute a claim for the purposes of the legislation even if it does not comply with the WorkCover Guidelines set out under s.260(1).

The WorkCover Guidelines are directed to insurers and are not mandatory for Workers.

The WCC has jurisdiction to hear and determine a dispute in respect of which there has been no claim.

Section 260(5), which provides that a "failure to make a claim as required by this section" is not a bar to the recovery of compensation in certain circumstances.

The principles of procedural fairness require a "flexible" approach by the WCC, which includes the adjournment of proceedings to enable the employer to investigate and meet a claim not previously made.

The power of the Deputy President on review/appeal extends to conducting a "fresh hearing" and is not constrained by the need to identify an error on the part of an Arbitrator.

There is no requirement that notification of a claim needs to be articulated in the statutory language of an 'injury' or an 'aggravation'. Lack of strict compliance with s 260 and the Guidelines therefore does not deprive the Commission of its statutory jurisdiction otherwise conferred by statute.

It is absurd to think that in an Act to assist workers, a worker could be left without any support at all because, after a lengthy hearing, his or her problem was held to be a fresh injury rather than an exacerbation and a separate piece of paper in the form of a prescribed claim had not been lodged in respect of it.

Furthermore, it would be surprising to those in the real world if, after an expensive hearing lasting many days, a tribunal came to the conclusion that it had never had any jurisdiction to commence hearing the matter as someone had omitted to serve a piece of paper.

The matter was remitted to the WCC for re-hearing.
Haroun v Rail Corporation New South Wales & Ors
[2008] NSWCA 192
18/08/2008
Court of Appeal
McColl JA, Handley AJA, McDougall J
Supreme Court

Workers Compensation Commission
http://www.lawlink.nsw.gov.au/scjudgments/2008nswca.nsf/09da2a0a2a27441dca2570e6001e144d/d1871a6a21eb3ad4ca2574a4001a63d6?OpenDocument
Are the findings of impairment by the Arbitrator binding on an Approved Medical Specialist assessing whole person impairment? With the consent of both parties, an Arbitrator made a finding that the Worker’s two falls at work “continued to contribute to any impairment” suffered by the Worker. The matter was referred to an Approved Medical Specialist (“AMS”). The worker was referred to the AMS to be assessed with respect to the degree of permanent impairment he suffered as a result of the injuries and whether any proportion of that impairment was due to a previous injury or pre-existing condition.

In the medical assessment, the AMS disregarded the finding of the Arbitrator that the Worker’s falls at work continued to contribute to his impairment.

An appeal to the Appeal Panel by the Worker failed as the Panel confirmed the AMS’ findings.

The Court of Appeal held that if there is a medical dispute of a kind defined under Section 326(1) of the Work Injury Management and Workers Compensation Act 1998 (“the 1998 Act”), an Arbitrator has no jurisdiction to decide the medical dispute but may refer it for assessment by an AMS.

Since the Arbitrator had no jurisdiction to decide the medical dispute that he had referred, he had no jurisdiction to make findings which were binding on the AMS or the Appeal Panel. The findings made by a forum that did not have jurisdiction to make such findings cannot bind the person or persons with jurisdiction, and cannot even be persuasive.

Section 326(1) of Workplace Injury Management and Workers Compensation Act 1998 provides that a MAC is conclusively presumed to be correct, in any proceedings before a Court or the Commission. Section 326(1) of the 1998 Act trumps any inconsistent findings by an Arbitrator.
P & H Property Service Pty Limited v Branigan; Westfield Shopping Centre Management Co Pty Limited v Branigan
[2008] NSWCA 195
11/08/2008
New South Wales Court of Appeal
Hodgson JA, Bell JA and Rein J
District Court of New South Wales
Goldring DCJ

Workers Compensation Act 1987 (NSW)
Civil Liability Act 2002 (NSW)
1. What was the extent of P&H’s contractual obligation to clean the area where the Plaintiff slipped and fell?

2. Did the Trial Judge err in his assessment of damages?
P&H contracted to Westfield Shopping Centre Management Co Pty Limited (“Westfield”) for cleaning services at Westfield Liverpool.

The Plaintiff, Mr Branigan, was employed as a butcher at Joe’s Meats. On 24 October 2001, he slipped on a piece of cardboard at the back of Joe's Meats. The cardboard had been placed over an oil or grease spill on the floor. The Plaintiff strained his back. He was awarded $588,125 in damages.

Both P&H and Westfield appealed the decision (with respect to damages) however Westfield did not appeal in respect of liability. At the beginning of the appeal hearing, Westfield sought leave to include an appeal on liability. The application was opposed by the Plaintiff. The court determined that leave should be refused. The Plaintiff appealed two aspects of His Honour’s assessment of damages (pre-existing back condition and residual earnings capacity of 50%).

The trial judge held that Westfield as manager and occupier of the Centre was responsible for the safety of members of the public that might enter the Centre.

The Plaintiff’s injury occurred in an area immediately adjacent to a ramp which led to the carpark and was very close to Loading Dock No 6. The trial judge held that the area where the slip occurred was not part of the loading dock. The cleaning contract was ambiguous as to whether the area the accident occurred was part of the loading dock. The specifications in the cleaning contract provided that the loading dock was to be cleaned every day. Other areas of the Centre required inspection every 20 minutes and cleaning as required. The area where the Plaintiff slipped was not clearly identified in the specifications of the cleaning contract.

The ambiguity with respect to the cleaning contract was also due to the fact that Visy was responsible for the loading dock. The trial judge held it was ambiguous as to whether it was the responsibility of any cleaner to clean the area where the Plaintiff slipped. Westfield had not delegated the responsibility to clean the area of the slip at all. Westfield owed the Plaintiff a duty of care to provide a proper system of cleaning.

P&H argued the 20 minute inspection intervals related to the public mall area and not the back corridors which were dealt with in the same manner as the loading dock, that is, they were inspected and cleaned once a day. P&H also argued the trial judge erred in treating the cleaning contract as ambiguous and not construing it.

The majority held that, having regard to the documents that formed part of the cleaning contract between P&H and Westfield, P&H did have a contractual responsibility to clean the area where the Plaintiff slipped. It was also held that the area in question was required to be inspected and cleaned once a day.

Having determined P&H were required to clean the back corridors once a day, the majority considered whether P&H breached that obligation. Neither P&H nor Westfield called evidence. The Plaintiff’s evidence established there was a lax attitude to cleaning the area in question.

The Plaintiff tendered an incident report which indicated inspection every 40 minutes and an inspection 35 minutes prior to the accident. The inspection report did not contain any evidence about what was observed on inspection or what had been done as a result of that inspection. There was no evidence of who had placed the cardboard on the floor, nor any evidence by P&H or Westfield that the cardboard had not been placed by any of them.

The majority held that P&H had no contractual obligation to clean between 7.00am and 9.30am (the accident occurred at 8.55am). P&H’s failure to clean prior to 7.00am on the day in question was not causative of the loss to the Plaintiff. P&H’s failure to clean between 7.00am and 9.30am was not a breach of contract. It followed that no breach of contract causally connected with the accident was demonstrated and that P&H were not liable to the Plaintiff in respect of his injury. Judgment against P&H was set aside not on the basis that they had inspected and cleaned the area 35 minutes before the accident but because P&H were not contractually bound to do so.

With respect to P&H’s and Westfield’s appeal on quantum the majority held there was no reason to disturb the trial judge’s findings.
P&H succeeded on the appeal by a 2:1 majority with Hodgson JA dissenting. Westfield remained liable to the Plaintiff.

Hodgson JA held that P&H had contractual obligations with respect to the back corridors as follows:

(a) To clean once a day;

(b) To clean any spills immediately on awareness;

(c) To keep docks clean at all times.

Hodgson JA held that it was accepted as between P&H and Westfield that a routine for inspection of the relevant area was 40 minute intervals. P&H were contractually bound to carry out inspections at these intervals. This related to the duty of care the cleaners and Westfield owed a duty of care to the Plaintiff.

The trial judge found that:

(a) The requirement of daily cleaning was insufficient;

(b) The area was not in fact cleaned daily; and

(c) Westfield was on notice of this because of complaints.

Hodgson JA held that these findings were justified and showed breaches of duty of care by both P&H and Westfield to the Plaintiff.

Hodgson JA concluded it was probable the oil spillage occurred in the first seven hours of trading and thus had a proper system of inspection been implemented, it was more probable than not that the spillage would have been detected and removed.

Hodgson JA held that the appeal of P&H and Westfield should be dismissed and the cross appeal also be dismissed.
Hearne v Street
[2008] HCA 36
06/08/2008
High Court of Australia
GLEESON CJ, KIRBY, HAYNE, HEYDON AND CRENNAN JJ
Ipp JA Basten JA Handley AJA

Gzell J
Supreme Court Act 1970 (NSW), s 101(6)
Disclosure of documents filed in but not yet received in evidence by court – Whether implied undertaking attached to documents that
they would not be disclosed to third parties without leave of court – Where documents disclosed to Minister, a member of Parliament, and staff whether such disclosure protected by law of Parliament – Whether such disclosure protected by
public interest defence based upon right of communication with Parliament – Whether such questions should or could be decided by Court on basis of grounds of appeal and in face of disclaimer by alleged contemnors.
Agents or employees are themselves guilty of a contempt. It is civil not criminal.

There are implications for users of materials used in court proceedings for "political" or other purposes, for example in an action group such as BARG
Toll Pty Limited v Craig Morrissey
[2008] NSWCA 197
04/08/2008
Court of Appeal
Beazley JA, Handley AJA, McDougall J.
Workers Compensation Commmission
Robin Handley (Acting Deputy President)
Workers Compensation Commmission
Arbitrator Bell
s.40 Workers Compensation Act 1987
Following an injury in the course of his employment with the Employer, the Worker ceased his employment and worked as a truck driver for a company of which he and his wife were principals.

The Employer ceased making payments of weekly compensation whereupon the Worker sought weekly compensation on the basis of partial incapacity.

At the teleconference, the Employer sought leave to issue a Direction for Production which required the production of the financial records and bank documents of the company. The Commission took the view that the Directions for Production could not be issued simply to obtain a broad range of documents, in that there must be a specific identified issue requiring specific documents. The application was refused by the Arbitrator at the teleconference and the Arbitration.

The Employer appealed this decision.

The Deputy President found that the Arbitrator did make an error in the exercise of his discretion but was not satisfied that the Arbitrator's error would have affected the outcome of the matter.

The Deputy President found that the Worker's further statement and the Wages Schedule provided adequate information to enable the Arbitrator to make a fair and informed decision. He did not believe that the Arbitrator's refusal to allow the Employer to issue a Direction for Production would have affected the outcome of the matter.
The Court of Appeal held that the Deputy President correctly found that the Arbitrator erred in refusing to allow the Employer to issue a Direction for Production, but erred in finding that the error would not have affected the outcome of the matter.

By stating the test that way, the Deputy President had reversed the onus. The correct test was that he should have allowed the appeal from the Arbitrator, unless the error of the Arbitrator could not have possibly affected the result.

The Court of Appeal found that even if the Deputy President had not reversed the onus, he had asked himself the wrong question and the determination he made (that he was not satisfied that the error would have affected the outcome of the matter) was not a question that was reasonably open to the Deputy President in the circumstances.

In relation to the claim for weekly compensation under section 40, the Employer was entitled to have access to the primary source material evidencing the Worker's earnings from the company.

The appeal was allowed. The determination of the Deputy President was set aside. The decision of the Arbitrator was set aside. The dispute was referred to the Workers Compensation Commission for determination.
Gales v Lovett, McCracken & Bray
[2008] NSWCA 171
01/08/2008
Court of Appeal
Hodgson JA, Ipp JA, Hoeben J
Workers Compensation Commission
Acting Deputy President Robin Handley

http://www.lawlink.nsw.gov.au/scjudgments/2008nswca.nsf/09da2a0a2a27441dca2570e6001e144d/00d0ca43b5b1a995ca25749500085986?OpenDocument
Was the Worker entitled to compensation with respect to an injury that was commuted in circumstances where the deemed date of injury post dated the commutation agreement? The Worker was employed as a merchant seaman from about 1951. His last employment was with Lovett McCracken & Bray Pty Limited (“the employer”), and he last worked in 1996. During this employment as a seaman, he was exposed to sunlight, and this was a substantial contributing factor to the skin cancer he developed.

The Worker suffered a back injury in 1996 and he received an award for that injury.

On 23 March 1999, the worker filed an Application for Determination in the Compensation Court seeking compensation Section 66 and 67 of the 1987 Act in respect to injuries of his back, neck, both arms and both legs alleged to have occurred between various dates from 1985 to 1994, and contribution to and aggravation of injuries due to the nature and condition of his employment.

The Worker entered into a Commutation Agreement on 30 March 2000 bringing an end all entitlements under the 1987 Act, including injuries to his head, whole of back, neck, pelvis, both arms, both legs, both hands, both feet, anxiety, functional overlay and loss of hearing due to industrial deafness or deafness of like origin, skin cancer, severe bodily disfigurement and all other injuries received by him in the course of his employment.

On 12 July 2006, the Worker made a claim in respect of 12 percent whole person impairment resulting from a skin cancer condition. As skin cancer is classified as a disease of gradual process, the date of injury was deemed to be 12 July 2006 pursuant to Section 15 of the 1987 Act.

The Arbitrator held because of the application of Section 15 of the 1987 Act, a commutation in 2000 could not have operated to extinguish rights with respect to an injury that did not happen until 2006.

On Appeal, the Acting Deputy President found in favour of the Employer as he considered that Section 15 only applied to determine the deemed date of injury in order to establish the employer liability to pay compensation and that the commutation was effective to remove liability for entitlement in respect of liability.

On Appeal, the Worker submitted that the Acting Deputy President erred in law as the terms of the Commutation Agreement did not have the power to commute a liability in respect of an injury which was deemed to have occurred in July 2006.

Tthe following questions were raised:

1.What was the “injury” in respect of which the worker agreed liability would be removed?
2.Was this the injury in respect of which compensation was now sought?
3.Is the compensation now sought in respect of a “liability to make a payment under Division 4?

There was no doubt that “skin cancer” was the injury claimed and the Commutation Agreement brought an end to all entitlements including those with respect to injuries including skin cancer. There was no doubt that the worker’s skin cancer condition was an injury arising out of the nature and conditions of his employment with the employer.


It was held that the injury did arise during the period of employment and therefore the commutation agreement of 30 March 2000 removed liability for the injury.

Further, it was held that it could not have been the intention of the Legislation, in changing Division 4 of the Act, to deprive agreements having effect under Section 51 of this efficacy in relation to removal of liability under Division 4.
Erect Safe Scaffolding (Australia) Pty Limited v Sutton
[2008] NSWCA 114
06/06/2008
New South Wales Court of Appeal
Giles JA, Basten JA and McClellan CJ at CL
District Court of New South Wales
Goldring DCJ

Workers Compensation Act 1987
1. Apportionment of damages between three Defendants.

2. Whether the damages awarded to the Plaintiff were excessive.

3. The application of Section 151Z of the Workers Compensation Act 1987.

4. Whether the indemnity clause in Australand’s favour applied.

Australand was head contractor. Dalma was a formwork company and sub-contractor to Australand. Dalma employed Sutton, who was injured on the job site on 21 October 2002. Erect Safe Scaffolding provided scaffolding services to Australand.

Australand had formed a Safety Committee. The Safety Committee had on it representatives of each sub-contractor and Australand. Dalma’s representative, Mr Woodward, had informed the Safety Committee that he had become aware of a problem with the scaffolding expecting the Safety Committee would have the relevant party rectify the problem. Sutton (the Plaintiff), an employee of Dalma, struck his head on crossbar ties supporting the scaffolding and thereafter sustained neck injuries which prevented him from working.

One of the questions considered was whether Dalma, having reported the defect to the Safety Committee, had discharged its duty to its employees by relying on the Safety Committee to rectify the defect.
McClellan CJ at CL questioned whether Dalma’s duty of care to its employee could be delegated to the Safety Committee. Following Kondis v State Transport Authority (1984) 154 CLR 672, McClellan CJ at CL held the duty could not be delegated.

McClellan CJ at CL noted that Dalma neither took steps to warn its own employees of the danger or exclude them from working in the area of danger. Dalma should have taken either or both of these actions. Although Dalma must accept some responsibility for Sutton’s loss, the contribution should not be as great as that of Australand and Erect Safe. The greatest share of the loss should fall on Erect Safe who was responsible for erecting and maintaining the scaffold which created the danger.

Mc Clellan CJ at CL held that the appropriate apportionment of liability should be 60% to Erect Safe, 25% to Australand and 15% to Dalma. (Giles JA, who was in the minority with respect to apportionment, held the appropriate apportionment of liability should be 50% to Erect Safe, 25% to Australand and 25% to Dalma).

Another issue was whether, within the meaning of Clause 11 of the Subcontract, the liability of Australand “arises out of the performance of the Subcontract Works” by Erect Safe. Clause 11 of the Contract provided as follows:

“Clause 11 - Indemnity

The Subcontractor must indemnify Australand Constructions against all damage, expense (including lawyers’ fees and expenses on a solicitor/client basis), loss (including financial loss) or liability of any nature suffered or incurred by Australand Constructions arising out of the performance of the Subcontract Works and its other obligations under the Subcontract.

Clause 12 - Insurance

Public Liability

Before commencing work, the Subcontractor must effect and maintain during the currency of the Subcontract, Public Liability insurance in the joint names of Australand and the Subcontractor to cover them for their respective rights and interests against liability to third parties for loss or damage to property and the death or or injury to any person....”

The trial judge found that Clause 11 was engaged and Erect Safe was required to indemnify Australand with respect of the verdict that Sutton obtained against them. The trial judge also found that Erect Safe failed to maintain a policy of public liability insurance and Australand was entitled to damages for breach of that obligation.

Erect Safe submitted that performance of the Subcontract Works should be limited to its own performance and that Erect Safe was only liable for damage occasioned by any act or omission which it committed.

In Leighton Contractors Pty Ltd v Smith [2000] NSWCA 55, the Court (Mason P and Meagher and Fitzgerald JJA) held that proper construction of the indemnity clause meant that B&B (the roofing subcontractor) was obliged to indemnify Leighton in full for any verdict against it.

The indemnity clause was as follows:

“The subcontractor shall indemnify... the company against all loss or damage ...arising out of or resulting from any act, error or omission or neglect of the subcontractor.”

In Roads & Traffic Authority of NSW v Palmer [2003] NSWCA 58, the question arose whether Pioneer (the Contractor) was required to indemnify the Local Council (the Principal) for the Council’s own breaches of its duty of care. The Court found both Pioneer and the Local Council liable for breach of the duty they owed to road users.

The relevant clause was as follows:

“The Contractor shall indemnify the Principal... against any claim or action ... arising out of the construction of the Works by the Contractor.”

The Court determined that the indemnity clause should be construed so that the liability of Pioneer was confined to acts which it performed and did not extend to acts of negligence of the Council. The words “by the Contractor” were words of limitation.

In Australian Paper Plantations Pty Ltd v J & E M Venuroni [2000] VSCA 71 a similar conclusion was reached as the wording of the relevant clause included the words “by the tenderer”.

The Court again considered the issue in F & D Normoyle Pty Ltd v Transfield Pty Ltd [2005] NSWCA 193; 63 NSWLR 502. The contract contained an indemnity clause as follows:

“The sub-contractor shall indemnity and keep indemnified [the Joint Venture]... against all claims... arising as a result of any act, neglect or default of the sub-contractor, its employees or agent relating to its execution of the Works.”

The issue was whether the “act” should be understood as meaning an act involving a breach of a legal duty and construed the same as “neglect” or “default of the subcontractor”. Ipp JA held that “act” should indeed be construed in this manner.

Does Clause 11 confine the liability of Erect Safe to indemnify Australand for liabilities arising from Erect Safe’s performance of the Subcontract Works or does it extend to a liability of Australand which arises in relation to those Works? McClellan CJ at CL held that the indemnity is confined. The clause does not lack clarity. If the clause was ambiguous, it would have to be construed in favour of the surety, Erect Safe (refer Ankar Pty Ltd v National Westminster Finance (Australia) Ltd (1987) 162 CLR 549 in this regard).

The indemnity in clause 11 was confined by the word “arising”. The liability of Australand did not “arise” out of the performance by Erect Safe of its contractual obligations. The liability of Australand arose from its own independent act of negligence in failing to maintain an appropriate safety regime at the site.

Giles JA held that the basis for Australand’s liability was breach of its own duty of care owed to Sutton. Although Erect Safe’s performance of the Subcontract Works provided the occasion for it to incur liability, that is insufficient for the liability to have arisen out of the performance by Erect Safe of the Subcontract Works and its other obligations within Clause 11.

Basten JA, dissenting, upheld the trial judge’s order that Erect Safe should indemnify Australand pursuant to Clause 11. His Honour held that the proper course was to adopt the approach in Leighton Contractors and Davis v The Commissioner for Main Road (1967) 117 CLR 529.

A further issue involved Clause 12 of the Subcontract (that is, that Erect Safe would hold a policy of public liability insurance in joint names of Australand and Erect Safe). Erect Safe conceded that no policy of insurance existed. The majority (McClellan CJ at CL and Giles JA) held as liability of Erect Safe was confined pursuant to Clause 11, it follows that Australand had no right to recover against Erect Safe in respect of damages occasioned by its own negligence. There was no obligation on the part of Erect Safe to maintain a public liability insurance policy to support Australand’s direct liability to another caused by the negligent act of Australand.

Basten JA dissented. Basten JA held that the language of the insurance obligation in Clause 12.1 was consistent with a broader construction of Clause 11 and thus the insurance must not only be taken out in the joint names of Australand and Erect Safe, but must cover both of them “for their respective rights and interests” against liability to third parties. The description in Clause 12 is in unqualified terms and is not limited to joint or derivative interests. The obligation to hold workers compensation insurance expressly extended to the statutory liability of Australand under the Workers Compensation Act. The wording of the indemnity was inclined to extend to such a liability.

The Court held that the damages awarded by the trial judge were not excessive and within His Honour’s discretion.

As the Court held that Dalma Formwork was liable for a portion of the Plaintiff’s damages, it became necessary to redetermine the award by reference to Section 151Z of the Workers Compensation Act. The sum of $61,801.24 was deducted pursuant to Section 151Z from the damages awarded under the Civil Liability Act thereby leaving a total award to the Plaintiff of $601,568.53.
New South Wales Fire Brigades v Newman [2008] NSWCA 82
[2008] NSWCA 82
06/05/2008
New South Wales Court of Appeal
Basten JA, Bell JA & Handley AJA
Workers Compensation Commission
Roche, Deputy President

http://www.lawlink.nsw.gov.au/scjudgments/2008nswca.nsf/32a6f466fc42eb68ca256739000a724d/d46a5ea80de81616ca25743c00022dca?OpenDocument
Ms Newman had agreed to settle an earlier damages claim on the basis of payment by the Employer's Insurer for an amount which was intended to cover her solicitor's costs in relation to the claim.

The Employer argued that the Deputy President of the Workers Compensation Commission erred in law by concluding that Ms Newman was entitled to make a new claim under the Workers Compensation Act 1987 (NSW) ('the 1987 Act')on the basis that she had previously recovered damages in relation to an injury for which compensation was sought. The Employer submitted that Ms Newman was not entitled to recover under the 1987 Act by virtue of Section 151Z(1)(c).

Section 151Z provides:

(1) If the injury for which compensation is payable under this Act was caused under circumstances creating a liability in some person other than the worker's employer to pay damages in respect of the injury, the following provisions have effect:

(c) If the worker firstly recovers those damages the worker is not entitled to recover compensation under this Act.
The Employer submitted that the agreement pursuant to which payment was made characterised the payment as one for damages. Basten JA considered that the Employer needed to establish that this characterisation was not merely a factor which should be taken into account in assessing the character of the payment, but was one which necessarily led to the conclusion that the payment was by way of damages and not costs. However, Basten JA noted that the definition of damages in the 1987 Act expressly excludes any amount paid 'in respect of costs incurred in connection with legal proceedings'.

Basten JA considered that a problem faced by the Employer in relying on the agreement was that nowhere in the agreement was the payment characterised as being on an account of damages. The payment was neither intended by the insurer to be payment on account of damages, nor understood by Ms Newman to be such, when she authorised payment to her solicitors in the full amount.

Bell JA considered that Section 151Z(1)(c) is concerned with the avoidance of double compensation. 'Damages' is a reference to damages in respect of the injury. The ordinary meaning of damages is a sum of money paid to compensate a successful plaintiff in an action in tort or contract. The payment of costs was not monetary compensation in respect of Mrs Newman's injury.

Goodman Fielder Ltd v Hickson
[2008] NSWCA 69
24/04/2008
Court of Appeal
Giles JA, Hodgson JA, Hislop J.
District Court
Kearns DCJ

Law Reform (Miscellaneous Provisions) Act 1965 (NSW) Part 3
s151Z(1)(b) Workers Compensation Act 1987 (NSW)
Can the Law Reform (Miscellaneous Provisions) Act 1965 operate in reduction of the amount of workers compensation benefits repayable to the Plaintiff from damages recovered as a result of a settlement of the Defendant's action against a third party when no determination was made by a court in the settled proceedings concerning contributory negligence and the quantum of damages? Under Part 3 of Law Reform (Miscellaneous Provisions) Act 1965 ("LRA 1965"), all WC payments must be refunded to the WC insurer where there is a settlement of the damages claim against a third party.

The Court of Appeal noted that:

' settlement is ordinarily a compromise between the parties according to their assessments of the likely outcome of the worker's claim. In these assessments, perceived factual and legal difficulties for one or the other of the parties, or for both, play a part although with different perceptions. The perceived difficulties will commonly go beyond any question of contributory negligence, to core questions of liability and the extent of damages recoverable; a compromise will not often turn on contributory negligence, but will involve other considerations also, and there will be a compromise because the parties come to divergent global assessments of all considerations.'

Whilst the Respondent denied any obligation on the Employer or tortfeasor to enter into a tripartite agreement to resolve claims, the Court found that an agreement between the Claimant and third party on the extent of contributory negligence would be suspect - as it would be in the Claimant's interest to seek an inflated level of contributory negligence, and this inflated figure would not affect the third party.

Additionally, the Court found that there could be no further trial to determine the extent of contributory negligence. Thus, elimination of further proceedings in that apportionment was avoided, and certainty was afforded.

The Court determined that the injured worker must repay the full amount of the workers compensation benefits.

Unless the injured worker reaches a settlement with the WC insurer at the same time as they reach the settlement with the third party ' the full amount of compensation paid to date will be recoverable by the WC insurer.

Hodgson JA also highlighted the distinction of "damages recoverable" and not 'damages recovered' in s9(1)(b) of the LRA 1965.
Albert Edward Jessing v Pegasus Venue Management Pty Ltd
[2008] NSWCA 77
23/04/2008
NSW Court of Appeal
McColl JA; Handley AJA & Mathews AJA
District Court
Hughes DCJ

Workers’ Compensation Act 1987: - ss 151(H)(1) & 151Z(2)(c)
Suitor’s Fund Act 1951
Supreme Court Rules: - Pt 5.1 r23(1)
The Plaintiff was injured in the course of his employment when he tripped over piece of plywood in the basement of a building at Castle Hill showground. The sheet of plywood was placed over a drain hole to suppress odours coming from it. The Plaintiff was using a passageway to gain access to the office occupied by his employer. It required him to walk, in total darkness, about twenty metres across an unlit passageway to obtain access to a light switch outside the office. The Plaintiff sued the occupier of the premises for breach of duty of care to persons lawfully on its premises. The Plaintiff did not sue his employer as he did not meet 15% permanent impairment threshold pursuant to 151H (1) of the Act.

The trial judge made reductions to the Plaintiff’s common law damages against the occupier to reflect its diminished rights to contribution from the employer. He found that the employer’s contribution was 30% and the occupier’s 70%.

The Plaintiff appealed seeking a new trial. The Defendant cross appealed, alleging error by the trial judge in his application of s 151Z (2)(c). The Plaintiff’s principal challenge to the judgment was that the trial judge failed to give adequate reasons.

The Defendant argued that a new trial should be refused pursuant to Supreme Court Rule Pt 51 r 23(1) which permitted a Court to refuse a new trial, although error has been established, if the court is satisfied that no substantial wrong or miscarriage has occurred.



The Plaintiff claimed that his fall significantly aggravated existing problems in his back and elsewhere. He had a motor vehicle accident in the 1980’s and later underwent major surgery on his back on several occasions. Prior to the subject accident he was taking pain killing medications. The Defendant conceded that even though the fall aggravated the Plaintiff’s existing back condition it was only temporary.

The credibility of the Plaintiff’s complaints of continuing, but increased, back pain was a critical issue in this case. It affected the assessment of the Plaintiff’s non-economic loss, his future economic loss, and his claim for domestic assistance. The trial judge set out the arguments of the parties on this credit issue without making any findings.

Both the employer and the occupier were in breach of their duties to the Plaintiff. The employer was also an occupier and was fully aware of the conditions in the basement and its means of access.

The trial judge gave no reasons for the apportionment between the occupier and the employer pursuant to s 151z (2)(c).

The trial judge rejected the Plaintiff’s case on domestic services because the six months threshold in the Act was not satisfied but did not give any reasons.

The absence of credit findings affected or may have affected the Judge’s findings on the medical issues. Both the Defendant and the Plaintiff had significant evidence on this issue. Apart from a reference to some evidence the first Trial Judge gave no reasons for accepting the defendant’s medical case.

The Trial Judge failed to give adequate reasons for some of the critical issues in the case.

The court could only refuse a new trial pursuant to SCR Pt 51 r23 if it was satisfied that a new trial could not lead to a more favourable result for the Plaintiff. It was not possible for the court to come to that conclusion. There was a multiplicity of different results on different issues which a court might have reached on the present evidence.

A new trial was ordered.

Tweed Shire Council v Garrie Marriott
[2008] NSWCA 166
08/07/2007
New South Wales Court of Appeal
Ipp JA, Beazley JA, Handley AJA




On 10 July 2003, the Worker, suffered an injury to his back in the course of his employment with the Tweed Shire Council. He brought proceedings for compensation in the Workers Compensation Commission. The Arbitrator determined the claim in his favour. The Arbitrator’s award was in the following terms:

“The Respondent is to pay the Applicant weekly benefits compensation pursuant to ss 38 and 40 of the 1987 Act at the maximum statutory rate for a worker with two dependent children, as adjusted, from 4 November 2005 to date and continuing. From 1 October 2005 until 31 March 2006 that weekly rate was $484.60 and from 1 April 2006 until 30 September 2006 that rate is $494.50 per week.”

The Employer appealed from the Arbitrator’s decision. The Acting Deputy President upheld the appeal and made orders as follows:

“1. The Employer is to pay the Worker weekly benefits compensation pursuant to section 38 at the rate of $484.60 per week from 4 November 2005 to 25 January 2006 and is to pay compensation pursuant to s 40 at the rate of $236.00 per week from 26 January to date and continuing.

2. The Employer is to pay the Worker’s costs as agreed or assessed.”

The Employer appealed the Acting Deputy President’s decision. The issues to the be determined by the Court of Appeal were:

1. Was there a complete absence of, or alternatively insufficient, evidence to support the finding of incapacity and consequent award of weekly compensation?

2. Was there a denial of procedural fairness?

3. Was there a failure to give adequate reasons?
In relation to the first issue, the Court of Appeal accepted that there was a body of evidence that supported the Acting Deputy President’s findings. The Court referred to evidence tendered by the Worker in support of his claim for incapacity and also a considerable body of evidence to the opposite effect tendered by the Employer. This included surveillance video taken of the Worker performing various activities, which indicated that he was not incapacitated, and also reports from their qualified doctors commenting on the the video.

The Acting Deputy President made specific reference to the fact that only the doctors who gave evidence on behalf of the Employer commented on the video and that they were entitled to greater weight than what the Arbitrator had given them. However, the Acting Deputy President found that despite the video, the Worker was incapacitated. The Acting Deputy President stated that the impact of the video was an issue of weight that needed to be balanced. In other words, the evidence of both parties had to be balanced.

The Court of Appeal held that the approach taken by the Acting Deputy President was correct. He was charged with determining what value should be given to the evidence before him and to formulate a determination of the issues.

With respect to the second ground of appeal, the Employer submitted that it was denied procedural fairness by the Acting Deputy President as both parties were of the understanding that if the Acting Deputy President were to uphold the appeal, he was to remit the matter back for a rehearing and not expound his own decision.

The Court of Appeal rejected this submission based on Section 352(7) of the Workplace Injury Management and Workers Compensation Act 1998 (the “Act”), which gives the Commission the discretion to confirm or revoke the decision under appeal and to make a new decision in its place. The Act also left it open for the Acting Deputy President to remit the matter for rehearing.

On the final ground of appeal, it was submitted that the Acting Deputy President failed to give adequate reasons for his decision. The Court of Appeal found that the Acting Deputy President dutifully made his own determination as to incapacity. The Court of Appeal was satisfied that the Acting Deputy President provided sufficient reasons for why he accepted neither the Worker’s arguments with respect to the degree of incapacity, nor the Employer’s evidence that there was no incapacity.

The Court of Appeal found that the Acting Deputy President appropriately concluded that the Worker suffered a limited incapacity and gave sufficient reasons for arriving at the amount of compensation he had determined.

Accordingly, the Court of Appeal dismissed the Employers appeal with costs.
Golden Eagle International Trading Pty Ltd & Anor v Yu Zhang by his Tutor the Protective Commissioner & Anor
S355/2006
19/04/2007
High Court
Gummow, Callinan, Kirby, Hayne & Crennan JJ majority
Court of Appeal
Ipp, McColl & Basten JJA
District Court
Judge Balla
Motor Accidents Act 1988 No 102
Whether Section 45 payments are apportioned for contributory negligence. That is, whether they should be deducted before or after the deduction for contributory negligence. FACTS:

Mr Zhang was a passenger in a vehicle that lost control on the F6 freeway when tread came off one tyre. Mr Zhang was not wearing a seatbelt and was propelled out of a window, suffering serious personal injuries.

PROCEEDINGS:

Mr Zhang commenced proceedings in the District Court of New South Wales against (1) Golden Eagle International Trading, as the employer; (2) Mr Guang, as the driver; and (3) DMP Automotive Repairs, as the repairer of the vehicle (who had certified its roadworthiness less than a month prior to the accident).

The action against DMP failed, and DMP entered a submitting appearance in the appeal to the High Court.

Golden Eagle and Mr Guang admitted liability but raised the issue of contributory negligence.

MOTOR ACCIDENTS ACT 1988 NSW:

Section 45 of the Motor Accidents Act places an obligation on insurers to act as expeditiously as possible, and to make certain payments of an interim nature once liability has been admitted or determined.

Section 45(4) of the Motor Accidents Act states:

A payment made under this Section to or on behalf of a claimant before the claimant obtains judgment for damages against the defendant is, to the extent of its amount, a defence to proceedings by the claimant against the defendant for damages.

If the deductions for Section 45 payments are made after those for contributory negligence, the result is favourable for the insurer. On the other hand, if the deductions for Section 45 payments are made before those for contributory negligence, the result is favourable for the Plaintiff.

DISTRCIT COURT - CALCULATION OF DAMAGES:

Judge Balla calculated Mr Zhang’s loss in the following sequence:

1. Damages; less
2. Allowance for contributory negligence; less
3. Allowance for funds management; less
4. Section 45 payments.

COURT OF APPEAL - CALCULATION OF DAMAGES:

The Court of Appeal held that the Section 45 payments should have been deducted before the reduction for contributory negligence and suggested the following sequence:

1. Damages; less
2. Section 45 payments; less
3. Allowance for contributory negligence; less
4. Allowance for funds management.

This means that the deduction for contributory negligence would be based on a reduced sum, leaving Mr Zhang better off.

HIGH COURT - CALCULATION OF DAMAGES:

Golden Eagle and Mr Guang appealed to the High Court. They submitted that the whole of the damages assessment, including the Section 45 payment, is apportioned for contributory negligence, and only then are the Section 45 payments deducted form the balance.

Mr Zhang submitted that effect would not be given to the defence stipulated in Section 45(4) if the insurer’s payments were treated as part of the total assessment.

The majority, Gummow, Callinan and Crennan JJ allowed the appeal and upheld the calculation of damages by Judge Balla.

The Court held that if it had accepted Mr Zhang’s argument, it would essentially shield Section 45 payments from the effects of reducing damages for contributory negligence – an unjust result for the insurer and a windfall for Mr Zhang.

The Court also held that the Court of Appeal was correct to use prospective rather than historic tables to obtain a more accurate assessment of life expectancy.
Workers Compensation Legislation Amendment (Miscellaneous Provisions) Act 2005
Act No 113, 2005
01/01/2006
NSW legislation
NSW legislation



Workers Compensation Legislation Amendment (Miscellaneous Provisions) Act 2005
Workers Compensation Act
see new position The legislation inserts provisions that requires thta an insurer give notice and reasons when liability is disputed. Where there is a dispute, the insurer must provide notice as to the matters disputed. A dispute cannot be referred to the Commisison unless it concerns matters which have previously been notified by either party as disputed.
Furthermore in relation to disputes concerning weekly payments the registrar has all the functions of the Commission constituted by an Arbitrator and any determination of the registrar is taken to be a determination of the Commision constituted by an Arbitrator.
The registrar may not refer a matter to an AMS for determination where liability is in issue.
The Act also expands those considered 'deemed workers' to specifically include "outworkers" but only where they do not employ any other worker or subcontract work for their own profit. Furthermore a contractor under a labour hire contract for a labour hire agency is taken to be a worker employed by the labour hire agency while performing that work.
s66 is expanded to include a further section with respect to impairment of the back. The amount of compensation payable for assessments in relation to the back are to be increased by 5% for injuries to the back from 1 January 2006. If the back injury is only a proportion of the whole person impairment assessment then the compensation payable is increased for that proportion.
McLean v Darlington Point Sawmills Pty Limited
[2005] NSWSC 1012
06/10/2005
NSW Supreme Court
Hislop J



Supreme Court Act - s 76E
Workers Compensation Act 1987
Contributory Negligence

The Defendant alleged that the Plaintiff was guilty of contributory negligence by allowing her hand to be placed in a moving conveyor belt which she knew or ought to have known was dangerous.

Assessment of Damages

Whether the loss of a limb constituted 100% of a most extreme case.

Whether the Plaintiff required compensation for the cost of a prosthetic limb, despite evidence that the Plaintiff did not intend to use one.

Contributory Negligence

The Defendant bears the onus of proving that the Plaintiff is guilty of contributory negligence. The Defendant must demonstrate that the Plaintiff's conduct constituted a departure from the standard of care of the reasonable worker.

The Plaintiff was not guilty of contributory negligence because:

1. The Defendant had allowed the conveyor belt to be cleaned in the manner as carried out by the Plaintiff. No safety measures (which had subsequently been introduced) were in force.
2. The Plaintiff's actions were spontaneous.
3. Even if not spontaneous, the risk taken by the Plaintiff was excusable in the circumstances.
4. The Defendant could not demonstrate that it was not part of the Plaintiff's duties to remove debris from the conveyor belt.

Assessment of Damages

The Plaintiff was still able to walk and talk and attend to most of the requirements of everyday living. Therefore this was not a most extreme case, although it was a very serious case. 90% of a most extreme case awarded.

Although the Plaintiff may not currently intend to use a prosthetic limb, it is likely that advances in technology will improve the usability of prosthetic limbs and therefore an allowance should be made for the possibility that a prosthesis compatible with the Plaintiff's needs will become available.

NB. The Plaintiff was awarded damages pursuant to the rule in Sullivan v Gordon, which has since been abolished (CSR v Eddy).
O'Leary v Oolong Aboriginal Corporation Inc
[2004] NSWCA 7
14/05/2004
NSW Court of Appeal
Spiegelman CJ, Sheller and McColl JA
District Court
Garling DCJ

Common law workers compensation
O was the bookkeeper of OAC. Due to work stress, he was diagnosed with adult adjustment disorder in September 1998 and went on leave. In the meantime, OAC suspected him of having mis-appropriated money. When O returned to work in October, he found that his desk had been moved to an isolated location, his accounting books and computer removed, and his authority to sign cheques rescinded. OAC never told him why any of the above had occurred.

O was eventually diagnosed with major depressive disorder and tendered his resignation, but was dismissed before the resignation was accepted. He sued OAC over his psychological condition.

The trial judge found that OAC had negligently caused O's condition, but held OAC not liable because it was not foreseeable that O's psychological injury would result from OAC's actions.

O appealed:

• Was O’s eventual injury foreseeable?

• Did the September 1998 medical report provide OAC with knowledge of O’s susceptibility to injury?

The Court was split 2-1.

McColl JA (dissenting) held that OAC only need have foreseen the risk of "a" psychological injury, not the specific injury O suffered. That the risk was not far-fetched or fanciful and OAC should have foreseen it. She therefore found OAC liable.

Spiegelman CJ found that OAC had breached its duty to O, but that the duty owed was not a duty of care. He found for OAC.

Sheller JA found that the trial judge was entitled to find on the evidence that the injury was not foreseeable and that that judgment should stand.

Appeal dismissed.
Clout Industrial Pty Ltd (In Liquidation) v Baiada Poultry Pty Ltd
[2004] NSWCA 89
15/04/2004
New South Wales Court of Appeal
Sheller JA, Giles JA, Hodgson JA
District Court of New South Wales
Walmsley DCJ

Law Reform (Miscellaneous Provisions) Act 1946
Section 151Z of the Workers Compensation Act
Employee of C sustained injury on 7 March 2000 whilst performing duties on the premises of B who had obtained his labour from C, his employer, a labour hire company.

The worker commenced proceedings against B on 30 August 2001 claiming damages of Common Law for negligence.

B filed a Cross Claim against C on 4 February 2003 seeking contribution pursuant to Section 5 of the Law Reform (Miscellaneous Privisions) Act 1946.

B settled the workers case and persued the Cross Claim against C.

The Cross Claim was complicated by
the coming into force, pursuant to the Workers Compensation Legislation Further Amendment Act 2001 Scheudle 1, of amendments to the Workers Compensation Act 1987, which took affect on 27 November 2001. The amendments severely affected the capacity of an employee to obtain damages from an employer but left untouched the capacity of the employee to obtain damages from a non-employer such as B.

The Trial Judge found that B was entitled to contribution from C on the basis that C , if sued between 7 March 2000 and 27 November 2001, would have been liable in respect of the damage for which B was liable to the injured worker.

Whether C's liability to pay damages to the injured worker was to be assessed in accordance with the pre or post Novemeber 2001 amendments.

It was agreed between the parties that if the post 2001 amendments applied the level of contribution from C to B would be nil.
Held - Sheller JA; A third party tortfeasor, who's liability in respect of damage to an injured party has been ascertained, may recover contribution from any other tortfeasor liable in respect of the same damage, if, after the injured parties cause of action accrued, there was a time when the other tortfeasor, if it had been sued, would have been liable to the injured party. This is an indepedent cause of action.

In this case, if the worker had commenced proceedings against C before 27 November 2001 he could have recovered damages against C.

Because the injured worker could have claimed damages against C prior to the November 2001 amendments the amount to which B could look to C for with respect to recovery was assessed in accordance with the pre-amendment damages,not post.

Giles JA; Damages to which B could look to C for with respect to the claim for contribution were to be assessed on the basis of the leglisation prior to the November 2001 amendments.

In determining the issue it was sufficient that there was a period between the date of injury and the date of the amendments during which the worker could have taken proceedings to recover damages from C.

The effect of the transitional provisions upon the 2001 Act coming into force was that its amendments further curtailing the workers Common Law rights did not apply if proceedings had already been commenced.

Given that the worker had commenced his proceedings against B, the damages recoverable from B were assessed under the 1989 regime. Using the same damages regime for the hypothetical proceedings by the worker against C, the curtailment by the 2001 Act was of no consequence and C would have been liable if sued.

Hodgson JA; Although the worker had not complied with procedural requirements necessary before he could commence proceeding against his employer it was sufficient for the worker to be entitled, within Section 151Z(2)(b) to take proceedings independently of the Workers Compensation Act to recover damages from the employer, if the worker has a cause of action indepedently of the Workers Compensation Act against the employer.

However, Section 151Z(2) plainly proceeds on the assumption that Section 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1964 is applicable, and then operates to modify its application in a limited way. In order that it operate consistently with Section 5(1)(c), Section 151Z(2)(b) is to be read as applying if the worker is at any time entitled to take proceedings independently of the Workers Compensation Act, and Section 151Z(2)(d) is to be read as involving an assessment made at whatever time is adpoted for the purposes of Section 5(1)(c).

Appeal dismissed.
Stephen Leslie Greentree by his next friend Cyril Kevin Greentree v Trevor Ralph & Australian Jockey Club
Ralph v Greentree [2004] NSW CA 112
08/04/2004
New South Wales Court of Appeal
Tobias JA, McColl JA and Windeyer J
Compensation Court
Campbell CJ

Compensation Court Act 1984 (NSW)
Compensation Court Rules 1990 (NSW)
Guardianship and Administration Act 2000 (QLD)
Public Trustee Act 1978 (QLD)
Public Trustee Regulation 2001 (NSW)
WorkCover Legislation Amendment Act 1996 (NSW)
Workers Compensation Act 1926 (NSW)
Workers Compensation Act 1987 (NSW)
Workplace Injury Management and Workers Compensation Act 1998 (NSW)
The injured Worker, a young junkie, suffered a fractured skull and severe brain damage when his horse rolled on him during track work at Cessnock in December 1986.

Although he was employed by Trevor Ralph, the AJC was the relevant employer for Workers Compensation purposes.

On 16 July 1990 the Compensation Court made an order pursuant to Section 15(1) of the Workers Compensation Act 1926 that the AJC's liability may be redeemed in whole for the sum of $1,500,000.00.

The redemption sum was paid into the WorkCover Authority initially but ultimately the Public Trustee, who replaced the WorkCover Authority is the body to which lump sums, the subject of redemption, were to be paid.

Proceedings were commenced on behalf of the Worker by way of motion in the Compensation Court on 14 January 2002. He sought orders, in the order, that the Compensation Court authorise the payment of all funds held by the Public Trustee to his family to be held for his benefit.

The AJC was identified as a Respondent.

The motion was altered to seek an order for costs.

On 9 July 2002 the AJC was excused from further attendance, subject for being recalled on the question of costs. The Public Trustee, (who had been named as the sole respondent to the motion), remained as respondent in order to test and challenge the order for a change of trustee which had been sought.

On 3 July 2003 the Worker sought an order that the AJC paid his costs as well as those of the Public Trustee in respect to the proceedings.

The Trial Judge ultimately held that the AJC was liable for such costs.

• Whether or not the AJC was a party to the proceeidngs.
The effect of the redemption was to extinguish the liability redeemed.

The liability for payments of compensation with respect to weekly benefits, lump sums and Section 60 expenses had been extinguished.

In the circumstances of the proceedings in the Compensation Court the AJC was not a proper party. It had no interest in the outcome of the proceedings and, therefore, had no relevant submission to make to the Court in relation to the identity of the trustee of the funds. No order was or could be made against the AJC in the context of the application.

Accordingly the AJC was not a proper party to the notice of motion. No substantive relief was sought against it and therefore, it should never have been considered by the Compensation Court as a respondent to the notice of motion.

Accordingly the AJC was not a party to the relevant proceedings for the purposes of Section 112 of the Workplace Injury Management and Workers Compensation Act which gave the Compensation Court a discretion in relation to costs in proceedings.

Accordingly the Compensation Court had no power to order the AJC to pay the costs of the Worker or the Public Trustee.

Accordingly the Appeal was upheld and the Primary Judge's order that the AJC pay those costs was in error and set aside.
Stephen Leslie Greentree by his next friend Cyril Kevin Greentree v Trevor Ralph & Australian Jockey Club
Ralph v Greentree [2004] NSW CA 112
08/04/2004
New South Wales Court of Appeal
Tobias JA, McColl JA and Windeyer J
Compensation Court
Campbell CJ

Compensation Court Act 1984 (NSW)
Compensation Court Rules 1990 (NSW)
Guardianship and Administration Act 2000 (QLD)
Public Trustee Act 1978 (QLD)
Public Trustee Regulation 2001 (NSW)
WorkCover Legislation Amendment Act 1996 (NSW)
Workers Compensation Act 1926 (NSW)
Workers Compensation Act 1987 (NSW)
Workplace Injury Management and Workers Compensation Act 1998 (NSW)
The injured Worker, a young junkie, suffered a fractured skull and severe brain damage when his horse rolled on him during track work at Cessnock in December 1986.

Although he was employed by Trevor Ralph, the AJC was the relevant employer for Workers Compensation purposes.

On 16 July 1990 the Compensation Court made an order pursuant to Section 15(1) of the Workers Compensation Act 1926 that the AJC's liability may be redeemed in whole for the sum of $1,500,000.00.

The redemption sum was paid into the WorkCover Authority initially but ultimately the Public Trustee, who replaced the WorkCover Authority is the body to which lump sums, the subject of redemption, were to be paid.

Proceedings were commenced on behalf of the Worker by way of motion in the Compensation Court on 14 January 2002. He sought orders, in the order, that the Compensation Court authorise the payment of all funds held by the Public Trustee to his family to be held for his benefit.

The AJC was identified as a Respondent.

The motion was altered to seek an order for costs.

On 9 July 2002 the AJC was excused from further attendance, subject for being recalled on the question of costs. The Public Trustee, (who had been named as the sole respondent to the motion), remained as respondent in order to test and challenge the order for a change of trustee which had been sought.

On 3 July 2003 the Worker sought an order that the AJC paid his costs as well as those of the Public Trustee in respect to the proceedings.

The Trial Judge ultimately held that the AJC was liable for such costs.

• Whether or not the AJC was a party to the proceeidngs.
The effect of the redemption was to extinguish the liability redeemed.

The liability for payments of compensation with respect to weekly benefits, lump sums and Section 60 expenses had been extinguished.

In the circumstances of the proceedings in the Compensation Court the AJC was not a proper party. It had no interest in the outcome of the proceedings and, therefore, had no relevant submission to make to the Court in relation to the identity of the trustee of the funds. No order was or could be made against the AJC in the context of the application.

Accordingly the AJC was not a proper party to the notice of motion. No substantive relief was sought against it and therefore, it should never have been considered by the Compensation Court as a respondent to the notice of motion.

Accordingly the AJC was not a party to the relevant proceedings for the purposes of Section 112 of the Workplace Injury Management and Workers Compensation Act which gave the Compensation Court a discretion in relation to costs in proceedings.

Accordingly the Compensation Court had no power to order the AJC to pay the costs of the Worker or the Public Trustee.

Accordingly the Appeal was upheld and the Primary Judge's order that the AJC pay those costs was in error and set aside.
Wood v State of NSW
[2004] NSWCA 122
02/04/2004
NSW Court of Appeal
Handley, Beazley, Tobias JJA
District Court
Gamble AJ

s60E(1) Limitation Act 1969
s60C Limitation Act 1969
W allegedly suffered a stress illness while working as a police officer. S disputed when W's cause of action arose and the District Court ultimately found that his action was brought out of time.

The District Court also found that W did not satisfy all of the conditions of s60E(1) and he was barred from pursuing his claim.

W appealed:

• Was W required to meet every item contained in section 60E(1) before leave could be granted?
The Court found that the trial judge had made a fundamental error of law by requiring W to meet every test contained in section 60E(1).

The court considered that it was clear that section 60E(1) only gave guidance as to what matters should be considered by a Court in deciding whether to grant leave to proceed out of time.

During the appeal, S conceded that if Her Honour's judgment was set aside, they could not oppose an exercise of the Court's discretion in favour of W.

The Court therefore granted W leave to proceed.
HIA Apprentices Ltd v Nathan Bartley & Ors
[2004] NSWCA 87
01/04/2004
NSW Court of Appeal
Sheller, Ipp and Bryson JJA
District Court
Delaney DCJ

Common law negligence
B was an apprentice hired by H and working for A. Whilst working at a building site, A asked him to collect some timber. B climbed from a second storey window to reach a stepladder, but fell. The trial judge found that another ladder was located in the interior stairwell of the building and that B could have used that ladder to reach ground level.

However, he found that A's direction to B required immediate action and caused B to exit the building in an unsafe manner.

H and A appealed.

• Was the trial judge wrong to suggest that A’s direction was a breach of duty of care?

• Had there been any breach of duty of care by H or A?
The Court considered there was no evidence (not even from the Plaintiff) that A's direction required immediate attendance, and found that the trial judge had erred in accepting the direction as a breach of duty of care.

B also sought to support the trial judge's award by arguing that His Honour had also found that there was an unsafe system of work at the building site.

The Court found that, although unsafe system of work was pleaded as a particular of negligence, it was not pleaded in relation to the conditions under which the fall occurred. The Court also considered that the trial judge's statements regarding the work system were not findings of breach of duty of care, but background explanations for why B acted as he did.

Appeal upheld. Judgment entered for H and A.
Lipman Pty Ltd v Robert McGregor & Ors
[2004] NSWCA 6
15/03/2004
NSW Court of Appeal
Sheller JA, Santow JA, Gzell J
NSW District Court
Patten DCJ

M was an employee of C. To errect scaffolding M was required to climb a set of stairs in L's property where the scaffolding was being errected. The stairs were not complete and collapsed causing M injury.

In Defence of the proceedings, L relied upon a WorkCover report suggesting that there was safety tape across he stairs at the time of the accident. The report did not reveal how those conclusions were formed.

The Trial Judge found that L had failed to ensure that safety tape was applied to indicate the stair case was unsafe and thus prevent M from going up those stairs. In finding for M the Trial Judge did not address the WorkCover report, preferring instead to rely on first hand evidence.

L appealed on the basis that the Trial Judge had failed to have regard, or sufficient regard to the Work Cover report.

L also appealed on the basis that the Trial Judge had erred in not holding C liable for a portion of the injury.

L appealed the Trial Judges finding that the indemnity clause, that C would indemnify L for any injury arising out of any 'Works' did not respond to the injury sustained by M because he was not undertaking 'Works' when the accident occurred.
Held that the Trial Judge was entitled to prefer the evidence of first hand witnesses as opposed to the unsubstantiated evidence contained in the WorkCover report. The report did not address how the inspector arrived at his conclusion and did not assisst the Court in determining whether or not there was saftey tape present.

The Court held that the Trial Judge was correct in not attributing any liability to M's employer on the basis that the sairs were in control of L and L was obliged to ensure that they were safe. M was not performing his employment for C when the accident occurred, he was travelling to the location where he would perform his work.

The Court held that the indemnity provision could not be invoked by L against C because the description 'Works' referred to the errection of scaffolding. The Court held that M was not in the course of errecting scaffolding when the accident occurred. He was travelling to the site where he would undertake the 'Works.'
Williams v Boambee Bay Time Share Resort Pty Limited & Anor
[2004] NSWCA 59
12/03/2004
NSW Court of Appeal
Sheller, Santow and Stein JJA
Compensation Court
Maguire J

s40 Workers Compensation Act
W claimed against B for lump sums and weekly payments. The trial judge awarded compensation for s66/s67, but awarded no weekly payments, stating that:

"This lady has considerable experience and talent. She has worked for a considerable period of time since she was first injured. I find there are many jobs that she could do despite her impairments. I make no award for weekly payments".

W appealed:

• Had the trial judge erred in not following the procedure set down by section 40?

• Did the trial judge’s lack of reasons constitute an error of law?
The Court held that when determining entitlements to weekly compensation, the trial judge was required to do so in accordance with the procedure set down in section 40. The trial judge's failure to do so was an error of law.

The Court also found that the trial judge's brief reasons were inadequate and could consitute an error of law.

Appeal allowed.
Commonwealth of Australia v Chubb Security Australia Pty Limited
[2002] NSWCA 77
19/02/2004
NSW Court of Appeal
Handley JA, Beazley JA, Palmer J
NSW District Court
Garling DCJ

The Plaintiff was an employee of C and she was injured during the course of her employment when a television set fell on her. The Plaintiff's case was settled and the only issue that went to hearing was that of the construction of the contract between Cth and C.

Cth were the occupiers of the ATO. They contracted with C to provide security for the building.

The security contract required C to ensure suitable insurance covering against "any liability, loss, damage, claim, demand, action, suit or proceeding....at Common Law or under any statute... including workmen's compensation as a result of personal injury to or death of any' employee of the contract.

In a subsequent clause the insurance was to extend to 'cover all liabilities of the Commonwealth at Common Law and any applicable statute.

The Trial Judge held that the contract required insurance coverage for workers compensation only and accordingly the contract offered no protection for Cth as the claim was brought under public liability.
The Court held that the Trial Judge had erred in failing to have regard to the precise meanings of the wording in each clause.

The Court found that the contract required C to secure insurance for any liabilities whatsoever fpr personal injury or death of any of C's employees and that that insurance was expressly to include Common Law liability.

It was held that the Trial Judge had erred in having regard to precedent as it is well established that, unless the wording is of a standard type, a contract cannot be constructde in light of precedent decisions as every contract (and the intntions behind them) are different.
Cuthbert v Thomson
[2003] NSWCA 377
11/12/2003
NSW Court of Appeal
Hodgson JA, Ipp JA, Palmer JA.
NSW District Court
Sorby DCJ

Common Law
Contributory Negligence
C was employed by T as a farmhand. One of his duties was to undertake burning off work. C could not read or write but was experienced in farmwork.

On 20 June 1998 when burning off, C noticed a stack of logs was nearly out but was smoldering. In an effort to re-ignite the fire, C took a can of fuel and threw it onto the stack. The fuel ignited and burnt C.

Sorby DCJ found a breach of care by T but also found C guilty of contributory negligence. He reduced quantum by 45%.

C appealed on the degree of contributory negligence found.
The appeal was dismissed.

Ipp JA and Palmer JA both found that Sorby DCJ was within the range of his discretion to reduce quantum due to contributory negligence.

Although T had not implemented a safe system of work, it was common knowledge that to throw petrol onto a fire was extremely dangerous, and something that C should have known.

Hodgson JA, in the minority, substituted the 45% reduction to 25% reduction, agreeing that C knew what he was doing was dangerous but had also seen fellow employees throwing fuel on fires not quite out.
CSR Limited & Anor v Thompson
[2003] NSWCA 329
26/11/2003
Court of Appeal
Handley JA, Sheller JA and Ipp JA
Dust Diseases Tribunal
O’Meally P

Civil Law (Wrongs) Act 2002 (ACT) ss34(1), 34(3), 35(2)
Civil Liability Act 2002 (NSW) ss32(1), 32(3), 33
Civil Liability Act 2003 (Tas) ss34(1), 34(3), 35
Civil Liability (Amendment) Act 2003 (WA) ss 5P(1), 5P(3), 5Q
Dust Diseases Tribunal Act 1989 s32(1)
Wrongs Act 1936 (SA) ss33(1), 33(2)
Dust decision Sullivan v Gordon damages
From 1960 to 1963 the Respondent was employed in a factory owned and operated by the Second Appellant where he was exposed to and inhaled asbestos dust and fibre. The First Appellant supplied the asbestos to the Second Appellant. In June 2002 the Respondent began to experience symptoms of mesothelioma and was diagnosed as suffering from malignant mesothelioma in August 2002.

The parties agreed for the purposes of the proceedings that the Respondent was likely to die from mesothelioma on 13 February 2004. The Appellants admitted liability to the Respondent for damages caused by the mesothelioma.

O’Meally P held that the Respondent was entitled to damages in the amount of $465,899.49. Included in this sum was the amount of $165,480.00 being Sullivan v Gordon (1999) 47 NSWLR 319 damages for the Respondent’s loss of capacity to care for his disabled wife after his death. The Appellants appealed on the ground that O’Meally wrongly allowed Sullivan v Gordon damages.

O’Meally P had dismissed a claim made by the Respondent for damages arising out of the fear of suffering mesothelioma that he experienced before he in fact contracted the disease. The Respondent sought leave to cross appeal against this finding.


• Would the Court of Appeal be willing to grant leave for a re-argument of Sullivan v Gordon.

• Was there potential overlap between the claim for Sullivan v Gordon damages and any claim that might be brought by the Respondent’s wife at a later date under Section 33 of the Wrongs Act 1936 (SA).

• Are damages recoverable for a fear of contracting a disease before the Plaintiff actually sustains the disease and suffers any recoverable damage.
The Court was not willing to grant the Appellants leave to re-argue Sullivan v Gordon where a five judge bench had only recently been specially constituted to determine this issue. The decision had subsequently been followed in Western Australia and the ACT and for policy reasons would not be revisted.

The Court did not consider that there was any potential overlap between the claim for Sullivan v Gordon damages made for the Respondent’s loss of capacity to care for his disabled wife after his death and any claim that might later be brought by his wife under Section 33 of the Wrongs Act 1936 (SA) as Section 33 did not entitle the wife to recover damages incurred after the death of her husband. Sloan v Kirby (1979) 20 SASR 263. The terms of Section 33(2) stated that the damages of the wife are to be assessed “in the same manner as if claimed by her husband for damages in tort in respect of loss of impairment of consortium”.

Turning to the cross appeal the Court unanimously held that the cause of action for negligence is only complete when compensable harm is established and that the compensable harm was not established until 2002.

In addition, the law only recognises claims for mental trauma, not involving a recognised psychiatric injury, when the mental trauma is associated with physical harm caused by negligence of the Defendant (parasitic claims). Furthermore, there is no reason by way of principle or policy that justifies holding that a Plaintiff, claiming damages for personal injuries caused by negligence, can recover damages for fear of contracting a disease before the disease is contracted and the Plaintiff suffers any recoverable damage.

The Civil Liability Act 2002 (NSW) and the general policy discussed in Tame v New South Wales (2002) 191 ALR 449 in regard to claims for emotional distress not constituting psychiatric injury militates against recognising such a claim.

The appeal on the application for leave to cross appeal were dismissed and the parties invited to write submissions in relation to costs.
Mulkearns v Chandos Developments Pty Ltd
[2003] NSWSC 1084
18/11/2003
Supreme Court
Young CJ



Evidence Act s79
M sought to give evidence of a property’s value in an affidavit. C objected to M’s qualifications to do so.

• Was M disqualified from giving expert evidence in his own case
• Was M an expert
The Court considered there was no prohibition in Australia against expert evidence from sources familiar with a party.

The Court accepted that M had greater knowledge than an ordinary lay person but not so much knowledge that his opinion was of assistance to the Court. Further, M had not complied with the Expert Code of Conduct in preparing his evidence.

M’s evidence of valuation was rejected.
Justelius & Anor v McIlwraith
[2003] NSWSC 1039
12/11/2003
Supreme Court
Malpass M
Local Court
Jerram LCM

Common law
Mr and Mrs J commenced proceedings but then failed to appear at the arbitration and re-hearing. The claim was dealt with in their absence and judgment was entered against them. They filed a motion to set aside the judgment. The motion was unsuccessful.

They appealed:

• Had the magistrate at the re-hearing erred in not taking into account medical evidence provided to the Court on the morning of the re-hearing?
The Magistrate had taken all relevant material into account and had validly exercised her discretion not to grant an adjournment. The medical evidence provided to the Court related only to Mrs J and no explanation had been given for Mr J’s failure to appear (particularly as he delivered the material to Court at 9.00am on the morning of the re-hearing).

The Court said “Last minute applications of such a nature are becoming far too common (particularly by parties who are unrepresented) and are being used to obtain adjournments to which the party is not entitled”.

Appeal dismissed.
Ferguson v Maur
[2004] SASC 22
04/11/2003
Supreme Court of South Australia
Prior J, Perry and Gray JJ



General principles of negligence
‘A' sustained injury on 15.12.97 when an employee of ‘B' whilst serving A in the hardware shop pulled a piece of laminex from a stack of sheets stored in a rack and in the course of doing so struck ‘A' on the chin causing a laceration. ‘A' alleged he also developed PTSD and depression.

In a second incident on 28.6.98, ‘A' alleged he sustained injury in the form of soft tissue and severe psychological trauma as a result of having been assaulted at a night club by one of its employees (‘C').

Both accident were tried separately. In relation to the first incident, the Trial Judge found in favour of ‘A'. ‘B' appealed liability and quantum.

In relation to the later incident, the Trial Judge exonerated the nightclub b/c ‘C' was in fact not employed by the nightclub. ‘C' was nevertheless found liable personally for the assault.

The Judge assessed a global figure for what he considered to be the full extent of injuries attributable to both incidents and proceeded to apportion that amount between the 2 incidents on a percentage basis. He assessed $60,000.00 at which he apportioned $20,000.00 to the first incident and $40,000.00 to the second incident.
The Judge also found ‘A' 20% liable for contributory negligence in relation to the first injury and therefore ‘B's liability was reduced to $16,000.00. In relation to the second injury, the Trial Judge found ‘C' 25% liable and therefore entered a Judgment against ‘C" for $10,000.00. Total damages awarded to ‘A' were $26,000.00.

‘B' appealed on basis it did not breach its duty of care or in the alternate that contributory negligence should have been higher.

Duty of care.

Breach of duty of care.

Perry J noted as follows in Judgment:

" In my opinion, the possibility that ‘A' might have been in the vicinity was sufficiently real to give rise to a duty of care on the part of ‘B's employee to check to see that the way was clear for him to extract the sheet of laminex without giving rise to a risk of injury. As the trial judge found, for ‘B's employee to glance over his shoulder as a precaution before removing the sheet would have been a "quick and simple" process.

I would not interfere with trial judge's finding that ‘B's employee was negligent in failing to do so.

Neither would I interfere with his finding of contributory negligence to the extent of 20 per cent against ‘A'. It would have been obvious to ‘A' what ‘B's employee was proceeding to do as he began to extract the sheet of laminex. He should have sounded a warning to ‘B's employee, at least making him aware of his presence, or he should have moved clear, or both."
Surf Coast Shire Council v Glenn Arnold Webb
[2003] VSCA 162
27/10/2003
Supreme Court of Victoria Court of Appeal
Batt and Chernov, JJ.A. and Ashley, A.J.A



General principles of negligence
‘A' employed by his own garbage collection company who contracted with the Council (B) to clean and collect rubbish. ‘A' sustained injury on 7.2.97 whilst lifting a bin from its stand outside a delicatessen shop (C), such shop being within the municipal district of the shire.

The bin had a history of being overladen and on the day of injury it was jammed such that ‘A' had to give it a violent jerk to remove it.

‘A' sued ‘B' alleging an unsafe system of work and ‘C' for placing excessive waste amount in the bin.

The Trial Judge found against both ‘B' and ‘C' to be apportioned 78% and 22% respectively. Damages were reduced by 10% for contributory negligence.

‘B' appealed and ‘A' cross appealed quantum.

Is the duty of care as between an employer/employer the same as between employee and independent contractor?
The Supreme Court noted that it may be accepted for present purposes that the ambit of the duty that was owed by ‘B' to ‘A' was narrower than that owed by an employer to an employee. It was noted that the content of the duty must be determined by reference to all the relevant circumstances of the case.

The Court noted that in the present case importantly ‘B' did not have the responsibility or power to co-ordinate or relevantly direct ‘A' in respect of the work that he was required to perform in emptying the public rubbish bins. However, ‘B' did retain relevant control in respect of the bins in terms of matters such as their design and structure, the type of stand in which they were placed, the size of the opening through which bins could be deposited and the category and amount of rubbish that could be physically and lawfully placed in them. It also had the power to take enforcement action against those it knew or believed contravened its law in that regard.

Consequentially, to the extent that the design and structure of the bins and their contents could be said to pose or create a reasonably foreseeable risk of injury to those persons engaged by it to empty them, ‘B' was under a duty of care to take reasonable care not to subject ‘A' to that risk. Furthermore, the Court found that ‘B' failed to take reasonable steps to prevent ‘C' from placing commercial waste in the bins in question and/or to provide properly designed bins into which large bag of rubbish could be placed.
SRA of NSW v Sun Alliance and Royal Insurance Australia Limited
2003 NSWCA 288
03/10/2003
NSW Court of Appeal
Mason P, Sheller JA and Foster AJA
NSW District Court
Rolfe DCJ

Section 151Z(1)(d)
Indemnity from MVA CTP insurer
An SRA employee was injured in the course of his employment due to the negligence of a fellow employee, who was driving a crane owned by SRA and insured by Sun under a Motor Vehicle Third Party Policy.

The policy provided both SRA and the fellow employee with a statutory right of indemnity.

SRA sought indemnity from Sun in respect of statutory compensation paid by SRA based on Section 151Z(1)(d) of the Workers Compensation Act 1987 (“the Act”).

The Trial Judge held that Section 151Z(1)(d) had no application because Section 3 of the Employees Liability Act 1991 had removed any liability of the negligent employee to pay damages to an employer in the circumstances.

•Does Section 151Z(1)(d) allow for for a self insured employer to claim an indemnity from its Third Party Insurer, in the circumstances of this claim?
Section 151Z(1)(d) confers no right of indemnity against the insurer because the insurer was itself never liable to pay damages to the injured employee.

An indemnity under Section 151Z(1)(d) can only be sought from the person with liability to pay damages in respect of the injury.

In the circumstances of this claim that person is the negligent fellow employee, and SRA, vicariously, as his employer, not the insurer.

The law distinguishes between the primary obligation of a person, arising under a tort, statutory or contractual obligation directly to another, and the secondary obligation of a guarantor or insurer, who may be bound to indemnify the person primarily liable and whose indemnity is qualified by reference to the primary obligation.

The only trigger for the right conferred by Section 151Z(1)(d) is a liability to pay damages in respect of an injury which also happens to be compensable under the Act.

Had the negligent SRA employee been sued by the injured Worker, then the negligent employee could have sought indemnity under the policy, but that would not be an indemnity right conferred by Section 151Z.

Had SRA been sued for damages by the injured Worker in respect of its vicarious liability for the negligent Worker, SRA could not have sort indemnity from the negligent Worker because of Section 3(1)(a) of the Employees Liability Act 1991.

The appeal was dismissed.
Tomes v Adams
2003 NSWCA 264
22/09/2003
NSW Court of Appeal
Beazley and Santow JJA
NSW District Court
Chesterman ADCJ

Assessment of Damages
Motor Accident
A was awarded damages, primarily in relation to a back injury, in relation to a motor vehicle accident on 16 November 1998 in relation to which T had admitted liability.

The medical evidence made it apparent that A had a pre-existing back disability following a number of incidents at work.

CT scans taken in 1986 showed protrusion of the L4/5 disc displacing the left L5 nerve root and a mild protrusion of the L5/S1 disc.

The material from A’s treating doctors confirmed that in October 1998, shortly before the subject motor vehicle accident, A suffered another injury to his back while changing a truck tyre.

He presented to his GP in relation to lower back pain on 2 November 1998 complaining that the pain radiated down his left leg and had done so for a period of 3-4 weeks.

T’s most significant attack on the primary decision was that the Trial Judge had attributed all of A’s ongoing disability to the motor vehicle accident.

On appeal, T submitted that the Trial Judge was in error attributing the totality of A’s ongoing pain and disability to the motor vehicle accident.

•Were the Trial Judge’s findings, to the effect that the motor vehicle accident was responsible for the totality of A’s ongoing pain and disability and consequential award of damages, in error given the uncontested prior history of back complaints.
The Trial Judge’s finding that it was probable that A would completely recover from the previous back injury could not be made without supporting medical evidence. There was no such evidence tendered at trial. In the circumstances the Trial Judge’s award of damages could not stand.

A’s damages were reassessed by awarding economic loss and out of pocket expenses with a 50% discount for vicissitudes and non economic loss of 21% of a most extreme case (the Trial Judge having assessed non economic loss of 28% of a most extreme case).
The Trial Judge applied the wrong tax rate in relation to the award of economic loss. The appropriate rate was 43%. As part of the reassessment of damages economic loss was calculated using the appropriate tax rate.

The appeal was allowed. A’s damages were reassessed in accordance with the Court of Appeal’s findings.
Corrinne Hunter -v- Aubrey & Hunter Area Health Service
[2003] NSWCA 236
26/08/2003
NSW Court of Appeal
Sheller JA, Beazley JA, Santow JA
NSW District Court
Rein DCJ

Motor Accidents Act 1988
s. 70A
s. 79A
H sustained injury on 31 December 1998 in a motor vehicle accident when her vehicle was hit from behind by A.

The trial judge considered the injury to be ‘soft-tissue damage’ and the pathology evident (C6 bulge) did not arise out of the accident.

The trial judge found for the Defendant on the basis that H had failed to satisfy the relevant thresholds for damages.

H appealed on the basis that the trial judge erred in not giving sufficient, or any regard to certain medical evidence.

Did the Trial Judge err by failing to have regard for certain medical evidence and being influenced by other matters contrary to the medical evidence?
The trial judge had both failed to properly consider all of the medical evidence, failed to consider other significant evidence and had misinterpreted certain medical evidence causing him to err in his decision.

The disregarded evidence and the misinterpreted evidence undermined the conclusions the trial judge reached in finding that H did not satisfy the relevant thresholds.

Appeal was upheld and a re-trial ordered.
Michelle Metz v Joseph Frederick Gordon Smith t/as Ashmont Electronics
None
01/08/2003
Compensation Court of New South Wales
Neilson J



Workers Compensation (General) Regulations 1995
Compensation Court Rules 1990 - Part 16 Rule 7
Workplace Injury Workers Compensation Act 1998 - s112
Costs
M allegedly sustained an injury to her back at Ashmont Electronics on 20 April 1999. She commenced proceedings in the Compensation Court for weekly compensation and lump sum compensation. Following the filing of the Application for Determination she allegedly developed a conversion disorder which rendered her right leg virtually useless. The claim was amended to include this further injury.

Injury, incapacity and the causal nexus between the alleged injury to the back and right leg were all hotly contested and the matter proceeded before Judge Neilson. During the morning of day three M sought an adjournment to address a "development" in the case. On one view of it the case had not gone favourably for her. During the course of this adjournment M's Solicitors filed an election to transfer proceedings to the Workers Compensation Commission (WCC) which brought to an end proceedings before the Court.

The Respondent argued the Applicant ought have no costs of proceedings and sought an order that the Applicant pay the Respondent's costs of day three of the hearing.

• Was the Court precluded from making costs orders by Regulation 93A(2), which provides that on receipt by the WCC of an election the claim must be treated as a "new claim".
The Court has a general power to order costs. There are no provisions ousting the Court's power to make an order for costs after a matter has been transferred to the WCC. Section 112 of the WIM Act 1998 provides that the Court has the power to make an order in relation to costs within 28 days after the day on which the final award or order determining the claim is made. Judge Neilson considered that pursuant to Section 112 of the Act the Court had the power to make a costs order either prior to or subsequent to the Applicant's election to transfer proceedings.

Neilson J considered the decision by the Applicant to elect to have the matter transferred to the Commission was "a blatant exercise in forum shopping" and considered that the maintenance of proceedings on day three after a decision had already been made to transfer proceedings had no justification. He made the following orders:

1. That the Applicant have no costs of the proceedings in the Compensation Court.

2. The Applicant pay the Respondent's costs of the third day of the hearing.
Allianz Australia Insurance Limited v GSF Australia Pty Limited
[2003] NSWCA 174
01/07/2003
NSW Court of Appeal
Mason P, Santow JA, Davies AJA
NSW District Court
Delaney DCJ

Motor Accidents Act 1988
s3,
s, 69
s47A
Motor Accidents (Amendment) Act 1995
Motor accident Employer liability
Plaintiff (P) was employed by GSF. P was directed to unload containers from truck. Truck had been modified to facilitate loading and unloading. Day prior to accident, mechanism for loading and unloading became inoperative.

GSF directed P to unload manually rather than fix mechanism. P sustained injury.

Judge found GSF entitled to indemnity under CTP policy.

Allianz as CTP insurer appealed arguing:
The injury did not fall within the definition of “injury” in S3 of the MAA and that the injury was a result of the employers negligent direction.
Held by majority. Santow JA dissenting.

There was a defect in the vehicle because one of the important things it was designed to do was not functioning.

The definition speaks of injury being “a result of” not “the result of”. As the injury was “a result of” the defect, the definition was satisfied. It did not matter that the injury was caused by the use of the defective vehicle and not by the defect itself.

Application for special leave to Appeal to High Court has been filed.
McDonald v Livestock Transport (Sydney) Pty Limited
[2003] NSWCA 166
27/06/2003
NSW Court of Appeal
Meagher JA, Handley JA, McColl JA
NSW District Court
Cooper DCJ

Supreme Court Rules 1970 (NSW)
M alleged injury to his back as a result of a defective seat in a horse transport, whilst employed by L between 1996 and 1998.
On 9 July 1999 M suffered further back injury lifting a truck loading ramp in subsequent employment.
Cooper DCJ found L liable for the back injuries from 1996 to 1998 however found the subsequent injury subsumed any pre existing disabilities including those from the earlier accident.
Cooper DCJ found the effect of the defective seat on M's medical condition ceased in July 1999. Non economic loss was assessed only for the period June 1996 to July 1999. Economic loss was also limited to the period ending July 1999 and no allowance made for the increased incapacity after the July 1999 injury.
Damages of $37,778.00 were awarded. M appealed, and L cross appealed, on quantum.
• Whether there was sufficient evidence for the Court to found a subsequent injury subsumed all pre existing disabilities.
The medical evidence did not support the conclusion that the 9 July 1999 incident was a totally fresh injury which completely subsumed any pre existing disabilities, pain and suffering.
Medical reports did not refer to the 9 July 1999 incident, nor was M cross examined on it. Cooper DCJ erred in concluding the later incident was an intervening vicissitude which subsumed any earlier injury.
The appeal was upheld and the matter referred to the District Court to determine quantum.
Bellach v MWAHS
NSWCA 165
20/06/2003
New South Wales Court of Appeal
Meagher JA; Ipp JA; McColl JA
District Court
Puckeridge DCJ

Effect of a Deed of Release executed in separate proceedings
Employer liability
B sued his employer for damages for injuries allegedly sustained by him when he fell off a ladder whilst pruning trees. His employer as a defence relied on a Deed of Release which related to a dispute between B and his employer resulting in an action for unfair dismissal. This was signed prior to the claim for damages being listed for hearing.

Significantly the Deed stated that B was to release and discharge his employer from any and all liability, claim, damage, action, loss, cost and expense arising out of or incidental to his employment with the Health Service and its termination, such release not extending to any or all of B's rights to make any claim for worker's compensation.

The evidence suggested that the Solicitors acting for the employer when they executed the Deed had no idea of the existence of the present action and that when B executed the Deed of Release he did not turn his attention to the effect the Deed may have on his claim for personal injury.

Puckeridge DCJ found that the Deed extended to exclude B from obtaining damages against his employer in respect of his claim for personal injury.

B appealed.

• Does a Deed of Release signed by a Plaintiff in the context of unfair dismissal proceedings extend to provide protection to an employer in a separate claim for personal injury.
The Deed of Release was no valid defence to the present action.

Ipp JA noted that "the consideration of the release seems to me to be prima facie inconsistent with an intention for the release to cover matters other than the proceedings in the New South Wales Industrial Relations Commission proceedings."

The Appeal was allowed and the matter returned to the District Court for determination of all other matters.
Rockdale Beef Pty Limited v Carey
NSWCA 132
13/06/2003
NSW Court of Appeal
Mason P; Ipp JA; McColl JA
District Court of NSW
Sorby DCJ

independent contractor
duty of care
scope of duty
C had been employed by R for several years until he was re-engaged as an independent contractor. As an independent contractor he was under the directives of other staff of R and of other independent contractors. Essentially his job had not changed once he became an independent contractor. C was injured when rounding up a steer in a race.

Sorby DCJ found R owed C a duty of care which was breached. Damages were reduced by 40%, as C should not have herded the steer at the narrow s. of the race.

R appealed on the grounds that Sorby DCJ erred in finding that R owed C a duty of care, had breached that duty and the legal nexus of causation of C’s injuries. C appealed the reduction for contributory negligence.

What is the duty of care owed by an entrepreneur to an independent contractor?
If there is a duty, what is its scope?
R’s appeal was dismissed and C succeeded in his cross appeal.

An entrepreneur may owe a duty of care to an independent contractor according to the general law of negligence. (Confirming Stevens v Brodribb Sawmilling Company Pty Limited (1986) 160 CLR 16.) Depending upon the factual circumstances, the duty, when considering the care and control exercised by the entrepreneur over the independent contractor, may be as high as the duty owed by an employer to an employee.

Ipp J who delivered the majority judgment found that the feed lot design was such that it gave rise to an unsafe system of work. Remedial measures, such as the installation of gates every 50 metres could have prevented riders having to herd runaway steers in a fashion that the steer could turn upon them, causing horses to bolt and injuries such as that which occurred to C possibly being prevented.

It may have been practically impossible for C to approach the steer slowly to prevent it from turning and for the animal not to suddenly accelerate. As the system of work, and the design of the 7 metre wide feed lot were unsafe, there was no contributory negligence, as the narrow part of the race where C was injured could be dangerous when rounding up a steer.
Radosavljevic v Radin & Ors
[2003] NSWCA 217
10/06/2003
Court of Appeal
Mason P, Handley JA McColl JA
District Court
Price J

Solicitors' Professional negligence and general principles of negligence
District Court Act 1973 (NSW) s127
District Court Rules 1973 (NSW) Pt12 r4(c)
The Appellant (executor and widower of the deceased) brought actions in negligence against three solicitors resulting from their handling of the deceased's personal injury at Ashfield Mall and workplace accident at Concord Hospital claims.

R was sued for failing to bring a proper claim for a fall suffered by the deceased at Ashfield Mall within the six year limitation period. R had mistakenly sued K-Mart. However, this claim against R was itself statute barred as it was brought more than six years after the extinguishment of the Ashfield Mall claim.

G, retained by the deceased in place of R to prosecute the Ashfield Mall action and workplace accident proceedings, was sued for delay in acting in settlement negotiations which resulted in a costs order of $10,000 against the deceased pursuant to Terms of Settlement. The Appellant also claimed against G the value of the proceedings which should have been brought against R.

C, the Appellant's own solicitor, was sued for failing to advise the Appellant to sue R for allowing the Ashfield Mall claim to become statute barred.

The trial judge held:

(i) G's delay did not contribute to the $10,000 costs liability to K-Mart Ashfield Mall. The Appellant challenged this finding.

(ii) Award against G in the sum of $13,328 for the lost opportunity to sue R for negligent conduct of the Ashfield Mall Claim. Appellant appealed against the inadequacy of the award. G filed cross appeal seeking that verdict and judgment be set aside.

(iii) G was negligent in the handling of the workplace accident proceedings for failing to take detailed evidence from the deceased after learning of her terminal cancer. However, the breach did not cause loss and no damages awarded. The Appellant challenged this finding.

(iv) G had breached his duty in not advising the Appellant of the relevant limitation period but held that there was no causation.

• Whether the solicitor's negligence caused the loss alleged.

• Whether damages for loss of opportunity were inadequate.
The Court unanimously held:

(i) The appeal against the rejection of the claim against G for the lost $10,000 failed as damages can only be awarded to the Appellant as indemnity against a real loss, actual or contingent. The Appellant suffered no loss in respect of the K-Mart costs order because the terms of the cost settlement stated that the payment was contingent upon a successful conclusion of the foreshadowed claim against R for professional negligence and the then pending claim relating to accident at Concord Hospital whichever happens first. Neither contingencies had happened nor was likely to happen.

(ii) The Trial Judge's assessment of general damages ordered against G for the lost opportunity to sue R was not manifestly inadequate.

(iii) G's cross appeal was refused because the sum involved was small and there was arguably a scintilla of evidence that the loss claimed was a viable one.
(iii) G's failure to take detailed evidence from the deceased did not cause or contribute to the Appellant's inability to successfully pursue he work accident claim as the difficulties with the case were not caused or materially contributed to by the absence of evidence. The facts did not support a claim for work injury damages and a statement taken from the deceased 8 to 10 years after the accident would not have improved the viability of her claim.

(iv) C's negligence in not advising the Appellant of the limitation period for bringing proceedings against R did not materially contribute to the loss. The evidence supported the trial judges conclusion that the Appellant would not have instituted proceedings against R even if he had been properly advised about the limitation period. The Court accepted that advices given by C and Counsel were that such an action was not viable.
Commonwealth of Australia v Diston
[2003] NSWCA 51
22/05/2003
NSW Court of Appeal
Mason P, Sheller JA, Grove J
Supreme Court of NSW
O'Meally J, Harrison M.

Limitation Act 1969 s60G
D sought leave to proceed out of time claiming damages for injuries sustained in 1950 and 1964 whilst in the Navy. His injuries were for the most part psychological and also involved allegations of increased alcohol and tobacco use.

Master Harrison rejected the application finding that missing employment records which covered significant years of D's employment history meant there was significant gaps for the Commonwealth seeking to investigate the reasons why D left employment.

The Master found that D's evidence was unreliable and therefore it would be more difficult for the Commonwealth to investigate the claims made, particularly in relation to the important issue of whether D had witnessed the collision. The Master found that there could not be a fair trial between the parties and that significant prejudice would follow if the trial was to be held.

O'Meally AJ overturned the decision, most notably finding that D's credibility was not an issue. His Honour preferred his own view of the interpretation of D's evidence. His Honour also noted that D had abandoned the claim for economic loss and therefore the absence of certain records were no longer relevant.

The Commonwealth appealed arguing:

The Master was correct in finding that previous untruths told by D and the significant passage of time prevented the Commonwealth from being able to defend the claim without significant prejudice.

His Honour had erred in the way he approached the Appeal from the Master. He was in error in simply substituting his own views to that of the Master. Given the error of His Honour in the approach he took, the Court of Appeal had to consider the findings made by the Master.
Due to the time that passed important medical and employment material could not be located. In addition, it had been established that D could not be relied on as a witness of truth.

The Commonwealth had established a real possibility of significant prejudice and this was of decisive importance in determining whether it would be fair and just to order that the limitation period be extended.

Appeal allowed and application to extend was refused.
Mechanical Advantage Group Pty Ltd v George
NSWCA 121
21/05/2003
NSW Court of Appeal
Spigelman CJ; Handley JA; Young CJ in Eq
Compensation Court of NSW
Neilson CCJ

Workers Compensation Act 1987
s. 10
journey claim,
onus of proof
George and his brother had been required to work in Young NSW. When the job was finished they set out to drive back to their home in Brisbane. They deviated from their direct route by staying overnight with their sister in Coogee NSW. The following day they left Sydney and drove to Bellingen, where they stayed overnight in a hotel. During the night George fell off a balcony and was seriously injured.

Neilson CCJ found: There was a single journey from Young to Brisbane; George had established a prima facie case against the employer; The employer bore the onus of proof that a deviation or interruption of a journey resulted in a material increase in the risk of injury; The employer had not discharged that onus.

The employer appealed the decision, on the grounds that there were three journeys, not one, that there was an interruption in the journey, and on who bears the legal onus of demonstrating that the risk of injury was materially increased.

• If the worker is injured on a “journey”, what level or type of detour creates a deviation or interruption?

• What creates a material increase in the risk of injury?

• Who bears the onus of proof?
By majority the Court of Appeal dismissed the appeal and found for the worker. Justice Spigelman agreed with Justice Handley, Justice Young dissented.

Although Neilson CCJ may have made factual errors in his reasoning, there was a prima face case made out by the worker and His Honour was correct in finding that the employer had the onus on the issue of material increase in risk of injury. The employer did not adduce further evidence to attempt to discharge this onus, eg cross examining the worker’s brother and therefore Neilson CCJ was correct in accepting the worker’s prima face case.

Onus is on the Applicant to disprove there is a material increase in the risk, unless a prima facie case is made out.

The findings of Neilson CCJ in respect of there being a single journey from Young to Brisbane was a question of fact and the Court could not interfere with his finding.

An increased risk, which is small in absolute terms, is not material merely because it is significant in percentage terms - Vetter v Lake Macquarie City Council (2001) 202 CLR 439

The increased risk due to the additional time taken on the journey as a result of the deviation or interruption is not necessarily material - Scobie v K
Karen Bunting v Merchants Solutions Pty Limited
Comp Ct. 14 May 2003
14/05/2003
Compensation Court
Burke AJ



WCA s10(1B)
journey
drinking
The Applicant claimed compensation for injury to the arm (requiring surgery and 3 months off work) after falling from a bar stool at a Hotel. She had gone to the bar with a work colleague. Allianz denied the claim on the basis that the injury was not substantially connected to the Applicant's work.

The Application for Determination claimed the Applicant was attending a work function at the time of injury, but was amended to calim journey at the hearing
Acting Judge Burke found that although the applicant said that she was going to discuss possible transfers within the organisation, she did not give evidence that this was actually discussed on the night.

Followed Vetter v Lake Macquarie City Council(2001) 202 CLR 439, in finding that there was no obligation for the worker to take the shortest or most direct route home. However, He considered the Applicant did not have the intention of gong directly home when she left work so it followed that this was not a periodic journey.

His Honour also found the risk of injury was materially increased because of the interruption applying Scobie v KD Welding Co. Pty Ltd (1959) 103 CLR 314.

His Honour found "On a general common sense basis one would think that after 4 hours or more of drinking and socialising the risk of misadventure was probably increased anyway whatever the route, weather, traffic conditions or degrees of illumination at various points." He found the Applicant had not the onus of proof required on this point.

His Honour found "notional" serious and wilful misconduct within the meaning of Section 10(1B) He found that "influence" was a more subtle intrusion than domination or deprivation of the will. So that the fact that she had fallen from a stool after several hours of imbibing a quantity of alcohol indicated she was under the influence of alcohol.
Saad v J Robins & Sons Pty Limited
[2003] NSWCA 87
17/04/2003
NSW Court of Appeal
Mason P, Hogson JA, Santow JA
NSW District Court
Sorby DCJ

Workers Compensation Act
s151A(5)
s151D
On 29 October 1990 Saad injured his right wrist at work. He had surgery, which was not successful. In 1996 He accepted lump sums pursuant to s. 66 and 67. He remained in the employment of Robins. The condition worsened over time and complications arose involving his elbow. (Reflex Sympathetic Dystrophy).

In November 2001 Saad filed a Statement of Claim claiming damages. Prior to this he made an application under s. 151A to revoke his election. s. 151A (5) states:
“If:
a. a person elects to claim permanent loss compensation in respect of an injury; and
b. after the election is made, the injury causes a further material deterioration in the person's medical condition that, had it existed at the time of the election, would have entitled the person to additional permanent loss compensation; and
c. at the time of the election, there was no reasonable cause to believe that the further deterioration would occur, the person may, with the leave of the court and on such terms (if any) as the court thinks fit, revoke the election and commence proceedings in the court for the recovery of damages in respect of the injury."

Sorby DCJ ruled that Saad was not entitled to revoke the election. Despite noting there was further deterioration in Saad’s arm, Sorby DCJ did not allow the worker leave to commence Common Law proceedings, as the deterioration was not at the site of the original injury

• Can a worker who has elected to take lump sum compensation pursuant to s. 66 later make a claim for damages at Common Law where there has been a deterioration in the worker’s medical condition?
The deterioration need not be only in respect of the original injury site but should be read widely to include the effects of that injury, which in this case included the right elbow, not just the wrist.

However, in respect of the election, there must be no reasonable cause for a belief that further deterioration which did occur would have occurred at the time of the election. The extent of injury only became apparent some ten years after the original injury, and there was not an unreasonable delay in the claim for damages.

The Court differentiated this matter from Itek Graphix Pty Limited v Elliot where the worker made an informed decision not to commence proceedings within 3 years post injury, as in this case there was an adequate explanation for the delay in commencing the proceedings.

There was no specific prejudice to the employer. The employer was aware of Saad’s injury, and the worsening condition of the right arm before the relevant time period had expired in respect of the limitation period.
Kelly S. Sousa v James Alexander Allen, Catherine Maria Brett and Hugh Reginald Southwood T/as Enfield Veterinary Hospital
Unreported
15/04/2003
Compensation Court of NSW
Geraghty CCJ



Compensation Court Act s 17(4)
Workers Compensation Act: 1987 Section 66
Reconsideration of Consent Award
S claimed lump sum compensation and medical expenses for injury to her neck, back and loss of the left arm from a motor vehicle accident sustained returning home from work. Section 66 lump sum claim settled on 23.04.98 with the Applicant receiving compensation for the neck, and Awards for the Respondent for the back and left arm claim.

The Applicant claimed her condition had deteriorated and in May 2002 filed an Application for Determination seeking compensation for further loss of the neck and a Notice of Motion seeking reconsideration of the previous Award in order to seek compensation for the back, left arm and medical expenses.

By way of Affidavit and oral evidence, the Applicant said she had no memory of having the settlement documents explained to her, and asserted that she had not been told that she would not be able to make further claims for compensation in relation to the back and left arm. There were allegations that the Applicant's prior solicitor and barrister had acted without S's authority.

Affidavit evidence by the Applicant's solicitor and barrister in the prior proceedings stated the Terms had been explained to the Applicant, which was inconsistent with the Applicant's evidence.

• What steps should be undertaken by an Applicant seeking reconsideration of a consent Award.
Geraghty CCJ in considering the Notice of Motion, found that the Applicant's current solicitors had failed to take adequate steps in investigating the Applicant's prior proceedings and the settlement. No enquiry was made of S's former solicitor or barrister and S's current solicitors relied entirely on the assertions of S. No further enquires of the former solicitor or barrister were made as to whether the Terms were explained to S or why she changed solicitors.

The Court found the Application was made without proper justification and ordered S to pay the employer's costs. The Application in respect of further compensation for the neck has yet to be determined.
Clampett v WorkCover Authority of NSW
[2003] NSWCA 52
20/03/2003
NSW Court of Appeal
Meagher JA Santow J Grove J
Compensation Court
Duck CCJ

Workers Compensation Act 1987 ss 59, 60
The worker was injured in 1972, losing the use of both legs and the right arm. The worker sought the expenses of f intended modification to a house he had occupied since 1987, which he did not own, but had a weekly tenancy from the Department of Housing.

He also sought the costs of maintaining the yard of the house and obtaining some handyman services.

What expenses were "Reasonably Necessary" pursuant to section 60.
The Court considered that there should be a wide reading on the term "reasonably necessary" in terms of s 60 of the Act. The Court found that the tenancy did not prevent the rented house from being inconsistent with the "worker's home", or "habitual residence" of the worker. As such, the proposed modifications needed to be considered apart from the prospect of the worker being moved from the housing as he was a tenant and not an owner.

The Court found that ‘home' does not just mean ‘house', and can apply to outside areas surrounding the building. However, the Court agreed with the trial judge that care of the worker in the home for the purpose of S 59 (1) did not allow grass or garden maintenance, even when it could be argued, on one view as ‘care". However, the Court did say that there may be some relief pursuant to the more recently legislated s 59(f1), which extends the definition of "domestic assistance services".
TNT Australia Pty Limited v Christie & 2 Ors: Crown Equipment Pty Limited v Christie & 2 Ors: Manpower Services (Aust) Pty Limited v Christie v 2 Ors
(2003) 191 NSWCA 47
12/03/2003
Court of Appeal
Mason P, Davies AJA and Foster AJA
District Court
Delaney J

Occupational Health, Safety and Welfare Act, 1983
Workers Compensation Act, 1987
workers hired through employment agencies
The Plaintiff worker was employed by an employment agency. The Agency assigned the Plaintiff to work at a Brewery operated by TNT. The Plaintiff was injured whilst walking behind a forklift which was being used to pick up beer orders. The forklift ran over the Plaintiff's foot. The Plaintiff sued both the Agency (Manpower) and TNT.

The trial judge found the Agency had a non-delegable duty of care and that there had been a failure to instruct and provide assistance to the worker. The trial judge found that TNT had similar duties and apportioned liability 75% to TNT and 25% to the Agency.

TNT cross claimed against Crown who had contracted with TNT to supply and maintain the forklift. The trial judge apportioned liability on the Cross Claim between TNT and Crown on a 50:50 basis. The evidence suggested that there had been a problem with the forklift which had been reported prior to the Plaintiff's injury.

1. Whether the trial judge erred in apportionment of liability?
(i) A non-delegable duty of care will be imposed on categories of persons regardless of personal fault on their part giving rise to the Plaintiff's injury, as long as the Plaintiff proves that damage was caused by lack of reasonable care on the part of someone within the scope of the relevant duty of care. TNT and the worker were in a position analogous to that of employer and employee giving rise to such a non-delegable duty of care.

(iii) An employer who operates a labour hire business does not abdicate its non-delegable duty simply because its employees are sent to work for a client.

(iv) Manpower and TNT breached their respective non-delegable duties of care to the Plaintiff by virtue of Crown's negligence in failing to detect and/or repair the cause of the problem with the pallet jack that had been reported two weeks before the accident. The trial judge's findings as to apportionment of liability between TNT and Manpower was upheld (ie. 75% TNT: 25% Manpower).

(v) The relationship between Crown and TNT and the arrangements between them for the supply and maintenance (on demand) of specialist equipment was evidence of an implied warranty that the pallet jack would be reasonably fit for its intended purpose. Crown's breach of warranty, particularly in not fixing a recurring problem that was capable of detection and correction at the time when it was first reported, entitled TNT to full contractual indemnity from Crown.
Thomas -v- Steven Doble & Sharon Simmons
District Court
25/02/2003
District Court
Arbitrator Heazlewood



Civil Liability Act 2002 (NSW)
dog attack
The Plaintiff alleged that on 24 January 2002 he attended the First and Second Defendant's premises and entered the front yard. As he approached the front door two dogs owned by the Defendants attacked and mauled him resulting in injury to the left forearm, left hand, various lacerations, fear of dogs, shock, severe scarring to the left arm, fear and anxiety, weakness of the arm, loss of power and strength to the arm and loss of ability to perform door to door sales.

The Plaintiff relied upon a report from Dr Conrad who assessed a 15% loss of use of the left arm at or above the elbow. Dr Morse diagnosed post traumatic stress disorder together with a phobic avoidance and an adjustment disorder with depressed mood. Dr Curtin estimated a 5% loss of use of the left arm and a 2% severe bodily disfigurement. Dr Rea did not consider the Plaintiff to have any physical impairment or disability and considered the Plaintiff to be fit for his normal work without restriction but conceded he may find day to day salesman work challenging because of apprehension about dogs.

The defendant admitted breach of duty of care.

1. Whether the Plaintiff was entitled to damages under the Civil Liability Act, 2002.
(i) The Plaintiff received an award in respect of non-economic loss in the sum of $9,000.00 (18% of a most extreme case).

(ii) Future Economic Loss (Buffer) $5,000.00

(iii) Past Out of Pocket Expenses $134.90

(iv) Future Out of Pocket Expenses Nil

Total - $14,134.90 plus costs
Sydney Ports Corporation v Collins & National Direct Imaging Pty Ltd V Lamy
2003] NSWCA 28
20/02/2003
Ct of Appeal
Stein JA, Giles JA, Santow JA
Dist Ct
Williams DCJ; Balla DCJ

s.151C
denial of liability
Common law proceedings cannot be prosecuted for six months following notice of injury unless all liability has been denied or the employer admits partial liability but the worker is dissatisfied with the extent to which liability is admitted (s.151C).

The trial Judge, Williams DCJ construed conversations between the worker and his employer which indicated that liability might be at issue, as a denial of all liability. The employer told the worker he would "have a fight on his hands". His Honour held that the circumstances of the case entitled the worker to interpret the conversations as a denial of liability and held that the worker's understanding of the representations was material for the purposes of s.151C(2)(a).

Williams DCJ also found that payments of statutory workers' compensation made to the worker constituted a partial admission of liability for the purpose of S151C (2)(b). The interpretation of s.151C(2)(b) was also at issue in Lamy v National Direct Imaging Pty Ltd.

Subjective or objective test whether all liability declined?
Do payment of statutory workers compensation amount to a partial admission of liability?
A denial of liability for the purposes of s.151C(2)(a) must be unequivocal. Where the meaning of representations pertaining to the liability of an employer is at issue the Court will determine the meaning from an objective point of view.

The payment of statutory workers compensation to an injured worker does not constitute a partial admission for the purposes of s.151C(2)(b).

The Statement of Claim was dismissed.
Lapcevic v Collier
[2002]NSWCA 300
20/11/2002
Court of Appeal
Beazley JA Davies AJA Barrett



s.151Z(2)
The worker was injured whilst opening a warehouse door. The lease between owner of warehouse and worker's employer, required the owner to maintain the door in a safe condition.
The worker sued the owner for damages and succeeded. The employer was not sued.

Was the owner negligent?
Should the damages awarded against the owner have been reduced pursuant to s.151Z(2) on the basis that the employer was negligent?
The owner owed a duty in tort to the worker to ensure that the door was not in a condition dangerous to its users and this duty had been breached.

The owner's duty of care was not abrogated by the employer's non-delegable duty to the employee.

The owner was not entitled to have damages reduced as it was not entitled to recover any contribution from the employer. This was because the employer (although owing a non-delegable duty of care to the worker) was entitled to a complete indemnity from the owner due to the owner's breach of the term of the lease requiring the door to be maintained in a safe condition.
Oran Park Motor Sports Pty Ltd v Fleissig; Teamfox Pty Ltd v Fleissig
unreported
15/11/2002
Court of Appeal
Beazley JA Hodgson JA Einstein AJA



s.151G, s.151H, s.151J, s.151M
The worker worked at Oran Park, and was injured whilst racing Go-karts colliding with a wall. He suedthe employer and Oran Park.

The trial Judge apportioned liability equally between the Defendants as proper padding on a race track corner had not been provided and then deducted 10% for contributory negligence. The defence of voluntary assumption of risk failed.

Were the Defendants negligent?

Was the worker negligent?

Did the Defendant establish a voluntary assumption of risk?
The risk of injury by impact with the wall was foreseeable and could have been averted or minimised.

There was no voluntary assumption of risk, as racing Go-karts was within the scope of the worker's duties.

There was a correct apportionment of 10% for contributory negligence.
Zaronias v Papaiani
[2002] NSWCA 207
31/07/2002
Ct of Appeal
Meagher JA Foster AJA Ipp AJA
Compensation Court
Burke AJ

s.4
"The Deceased was killed when a wall collapsed. There was an arrangement between the deceased and Respondent, whereby the Respondent would advise the deceased when work was available. The deceased was paid $100.00 for each day worked. He had been told that his services were not needed on the day in question but he turned up nevertheless. The indicia for what constitutes a worker " There was no contract of service between deceased and Respondent as the deceased was a volunteer.
BHP Steel v Oliver
[2002] NSWCA 76
03/04/2002
Court of Appeal
Meagher Giles Ipp
Compensation Court
Bishop CCJ

Workers' Compensation Act 1926 (NSW) s.11.
equivalent section s.40
incapacity due to other causes
test is not narrow
The worker suffered a back injury in April 1998 and alleged that as a result of a psychological injury in October 1998 he was prevented from working in his pre-accident job as a Dolly car driver
The worker took voluntary retirement and bought a newsagency, and made a claim for weekly compensation.
The trial Judge found that the worker had sustained 20% permanent impairment of the back but that the psychological injury was not work related. He found the worker was fit to operate Dolly cars in mines but for the psychological condition.
His Honour deducted ability to earn ($600.00) from comparable earnings ($1,150.00) arriving at a "loss" of $550.00. He then exercised his discretion to award $165.00 per week due to the effect of the non-compensable psychological condition on the worker's ability to earn.

Was the worker entitled to any compensation given that but for the psychological condition he was fit to perform his pre-injury duties?
The test for 'economic loss' should not be construed narrowly. That there was no initial loss in the worker's sphere of employment did not mean there was no economic loss, and it was correct for the trial Judge to calculate the economic loss suffered by the worker from his partial disability on the open labour market caused by the back injury.

That there was some supervening, non work related disability which intervened to aggravate that disability and cause the worker to leave his employment is not to the point.
Kushwaha v Queanbeyan City Council
[2002] NSWCC 25; (2002) 23 NSWCCR 339
25/03/2002
Compensation Court
Neilson J



s.11A(1)
s.11A(3)
"Pursuant to s.11A, workers are not entitled to compensation for psychological injuries as a result of reasonable disciplinary action against the worker. The Applicant was claiming Compensation for a psychological injury which she claimed arose after supervisors criticized her performance as a community worker. The Applicant was offered training and general support to overcome deficiencies, but her work failed to improve in a sustained way. The Applicant alleged that several supervisors acted out of a personal dislike of her, and that her anxiety and depression was caused by the alleged disciplinary process. What can constitute 'discipline' for the purpose of the Act?" ""Discipline" must be read widely, based on the presumption that Parliament intended the expression to carry its full meaning unless the context suggests otherwise. The process of bringing to the Applicant's notice her poor performance, requiring an improvement, suggesting practical ways of improving and offering support and training, as well as informing the Applicant of her lack of improvement was 'discipline' for the purposes of s.11A. The Applicant's employment was the substantial cause of the injury, but the reasonable disciplinary process imposed by her employers was the entire or predominant cause of the psychological injury that arose. Therefore, the Respondent had no liability. "
Puzyrewski v Zumtobel Staff (Australia) Pty Ltd
[2002]NSWCC 17; (2002) 23 NSWCCR 327
14/03/2002
Compensation Court
Armitage J



s.38A(2), s.38A(7), s.43A,s.43A(1)(c), s.43A(1)(h),s.52A(1)(a), s66
The Applicant had received an award for weekly payments pursuant to s.40 from the Compensation Court in 1994, following a left shoulder injury.

She later relocated to the South Coast of New South Wales. Claimed that she had unsuccessfully sought light work near her former residence. In 1999, the Applicant was also treated for breast treatment weakened the left shoulder and led to an extended recovery period.

The Respondent terminated the Applicant's weekly payments in October 2000. This was on the basis that she had failed to obtain suitable employment under s.52A(1)(a) and (c) and was not seeking suitable employment pursuant to s.38A.

Was the Applicant seeking suitable employment?
'Suitable employment', pursuant to s.43A(1)(h), will be any work that the worker is suited to, particularly when their relevant circumstances are considered.

If the worker relies upon a WorkCover medical certificate, the certificate need not elaborate upon what would be suitable employment for that specific worker.

The Applicant had been seeking suitable work when she was capable of seeking such work and had an intention to work therefore was entitled to continuing payments pursuant to s.38A(2)(d).

The Court will consider what were the reasonable steps taken by the Applicant to secure alternative employment with other employers, even outside the Applicant's prior area of residence.
Itex Graphix Pty Limited v Elliott
[2002] NSWCA 104
11/02/2002
NSW Court of Appeal
Spiegelman CJ, Sheller J and Ipp JA
District Court
Patten and Graham JJ

s151D
The worker was injured on 24.10.94. The limitation period expired on 24.10.97. In the meantime she made an informed decision not to pursue a common law claim. On 16.9.99 she sought leave to commence common law proceedings. Leave was granted on the basis that the employer was not prejudiced and the worker's conduct was reasonable.

* Should leave have been granted?
Whilst the worker's delay in bringing her action for damages caused the employer no prejudice, the worker failed to act diligently in the prosecution of her claim.

The Court approved of the test set down by Gleeson CJ in Salido v Nominal Defendant (1993) 32 NSWLR 524 when exercising its discretion to grant leave under s.151D(2) of the Workers Compensation Act, namely;
"whether, in the circumstances of each individual case, the applicant for leave has demonstrated that it is fair and just that leave should be granted"

The Court approved of the ratio of Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 where it was found that broad considerations of justice govern the grant of leave to bring proceedings after the limitation period has expired. These considerations include an examination of the conduct of the applicant for leave and the reasonableness of the explanation for the delay.

It then followed that to grant leave to sue long after the expiry of a limitation period when the Applicant has made a deliberate decision to allow the statutory period to expire, in the absence of special circumstances explaining satisfactorily the conduct of the Applicant, would set at naught the purpose of the legislation.

Application to the High Court for special leave to Appeal was not granted by Gleeson CJ and Hayne J on 15/11/2002
Woolage v State of New South Wales
[2001] NSWCA 256
15/08/2001
Ct of Appeal
Handley JA Beazley JA Stein JA



s.151E
s.151F
s.151G
s.151H
s.149
Worker injured in two separate but identical incidents when a chair moved as he was about to sit down. Trial Judge assessed damages globally as though all the injuries were sustained in one incident. Whether damages should have been assessed separately (including application of thresholds) for each incident. "Damages must be assessed separately for each injury. The two separate incidents gave rise to separate causes of action. The first incident was not sufficient to satisfy the thresholds and as a result, no damages for non- economic loss were awarded. A reduction of the award for loss of future earning capacity reduced by 30% for vicissitudes due to a pre-existing back condition although high was, on the facts, within the appropriate discretionary range. "
Zurich Australian Insurance Limited v CSR Limited
2001NSWCA261
13/08/2001
Court of Appeal
Spigelman CJ Mason P Handley JA
District Court
Black DCJ

MAA s.3(1) - Definition of injury/defect
Employee of CSR suffered injury during course of employment whilst lifting a ramp without assistance weighing 79 kilograms. The loading ramp was part of a custom built trailer attached to a truck. Employee settled his claim with CSR. CSR (self insurer for workers compensation) sued Zurich (CTP insurer) claiming indemnity. Claim succeeded and CSR appealed.

Whether the event fell within definition of injury.
Whether the failure to have a lifting device on a truck/trailer constituted a defect in the vehicle.
Provided the fault may be characterised as being in the use or operation of a vehicle as required in Section 3, it does not matter that some other characterisation of “fault”, for example an unsafe system of work, may also be appropriate.

The lifting of each ramp by one worker was an intended mode of operation of the trailer and was a “defect” within the meaning of para (a)(iv) of the definition given that the trailer was not fit for the purpose for which it was designed or the use to which it was intended to be put.

Special leave application refused in Application to H.Ct
Carroll v Forgacs Floating Dockyard Pty Ltd
(2000) 19 NSW CCR 353
01/03/2000
Compensation Court
Neilson J



s.66
s.67
s.71
s.71(2) had previously provided statutory warrant to agglomerate losses for purpose of s.67 claim. Whether two or more losses of hearing may be added together to reach threshold for award under s.66 and s.67. "There were two awards made for boilermaker's deafness against different employers. Neither award was sufficient to reach s.67 threshold. The Court considered whether the Worker's industrial deafness was caused by two separate losses of hearing rather than one continuous loss. It was held that Worker could not agglomerate two separate losses of hearing following repeal of s.71(2). Therefore, unless each separate s.66 finding is sufficient on its own to satisfy the s.67 threshold, then if there are two claims against two employers, the worker will not be entitled to lump sum compensation for pain and suffering pursuant to s.67, even though adding the separate losses would meet the threshold. "

Law as at 25 October 2014