The Federal Court have recently been faced with an interesting case dealing with the frequently changing definition of “in the course of employment”.

In PVYW v Comcare (No 2) [2012] FCA 395, an employee was injured in November 2007 during an overnight stay in a motel room booked for her by her employer. It was accepted that the stay in the motel constituted an interlude within an overall period or episode of work. However, the worker sustained injuries whilst she was engaged in a sexual activity. The rather awkward issue for the court was to determine whether that interlude was interrupted by the ‘activity’ and therefore whether she sustained injuries in the course of employment.

We’ll call the worker Mrs Smith (that may well be the name she used when she booked into the motel room) although we’ll never know her true identity. Perhaps names have been changed to protect the (ahem) “innocent”.

Her appeal against the decision to reject her claim was initially heard by the Administrative Appeals Tribunal who made their decision on the basis of agreed facts, as follows:

The Facts

Mrs Smith worked for a Commonwealth Government agency. She was to travel to a country town in New South Wales to assist with the conduct of budget reviews. One can hardly blame her for wanting to make that more interesting. So Mrs Smith caught up with a friend who lived locally. Mrs Smith and the friend (we’ll call him Mr Smith to make it easy, no doubt the motel receptionist found that the case) enjoyed a meal in a local restaurant. Perhaps it wasn’t spicy enough. So they returned to Mrs Smith’s motel room and had sex.

During this ‘activity’ a glass light fitting located above the bed was pulled from its setting and fell onto Mrs Smith, causing injuries to her nose and mouth, such that she later required hospital treatment. The agreed facts did not specify whether it was the Applicant or her companion who pulled the light fitting from the wall. That was not something the Tribunal appears to have considered significant, or perhaps they just wanted to spare everyone’s blushes. Fortunately for the Tribunal, no investigation as to contributory negligence would have been necessary.

The Respondent must have requested some further information, however, as they apparently accepted there was no “gross impropriety” in the Applicant’s behaviour on the day she suffered her injury and it was a ‘lawful activity’. Thank goodness for that, thought the Tribunal.

The agreed facts record that the Applicant did not advise her employer how she intended to spend her time while she was at the motel or who, if anyone, she intended to associate with while staying there. Perhaps not surprising!

There was no dispute on the facts that Mrs Smith was a worker, away from her usual place of employment and that she had sustained a personal injury – both physical and psychological (well it would have been a bit of a shock).

Legislation

Being in New South Wales, the Court were concerned with the Safety, Rehabilitation and Compensation Act 1988. Section 5A defines injury to include, relevantly, “an injury … suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment”: Of course very similar to Queensland’s WCRA S32(1) which sets out that “An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury”.

Section 6 of the NSW Act specifies various circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment. Section 6(1)(c) relevantly provides that an employee’s injury may be treated as having arisen out of, or in the course of, employment, if it was sustained while the employee was temporarily absent from the employee’s place of work undertaking an activity associated with the employee’s employment.

Again, the provisions are similar to the WCRA’s Section 34 (b) and (c) which note that an injury is also taken to arise “while the worker is away from the place of employment in the course of the worker’s employment; or while the worker is temporarily absent from the place of employment during an ordinary recess if the event is not due to the worker voluntarily subjecting themself to an abnormal risk of injury during the recess”.

Case Law

The Tribunal referred extensively to the High Court’s decision in Hatzimanolis v ANI Corporation Limited (1992) 173 CLR 473. The Tribunal considered that decision assisted with the interpretation of s 5A of the Act in that the words “in the course of employment”… “invoke a temporal relationship”. Hatzimanolis also set out that the test for determining whether an injury was sustained “in the course of employment” was a two step process, firstly characterising the periods of work, and secondly considering how the periods between actual performance of work were spent.

Tribunal’s Decision

Firstly, the Tribunal found that the Applicant’s injury occurred during an “interval or interlude” as the employer had expressly induced or encouraged her to spend the two days at the town, that it had programmed work for her on both days, and that it had booked the motel where she was to stay. Secondly, the Tribunal observed that not all injuries suffered during an “interval or interlude” are compensable, as injuries which arose out of “gross misconduct” were excluded. There was no suggestion however of any misconduct on the part of Mrs Smith (perhaps the employer wishes they had rewritten that policy).

The Tribunal went on to consider whether the activity in which the Applicant was engaged was “sufficiently connected with her employment” to constitute an activity undertaken in the course of her employment. Counsel for the Applicant had argued that since the Applicant was in a particular place for work-related purposes, that was the only criteria which needed to be met. The Tribunal disagreed , referring to the judgment of the New South Wales Court of Appeal in Watson v Qantas Airways Limited [2009] NSWCA 322, (2009) 75 NSWLR 539, in that an assessment of the circumstances from which the injury arose, as well as the ‘general nature, terms and circumstances of the employment’ was required. That suggested that the activities engaged in during any interval which led to the employee’s injury must be expressly or impliedly induced or encouraged by the employer. Although the connection need not be a close one, a nexus is essential before liability will be incurred. The mind boggles as to how closely the Tribunal investigated Mrs Smith’s connection.

The Tribunal also referred to Re Crook and Comcare [2001] AATA 352 which supported the proposition that “once an employee embarks upon a private activity, the interval is interrupted.”

In applying these principles to our Mrs Smith, the Tribunal felt that the requisite connection was absent. The employer had not expressly or impliedly induced or encouraged her sexual conduct that evening (nor presumably on any other occasion). Nor did the employer know or could reasonably expect that such an activity was contemplated by her (she was hardly likely to advertise that). The activity was not an ordinary incident of an overnight stay like showering, sleeping, eating, or returning to the place of residence from a social occasion elsewhere in the vicinity. Rather she was involved in a recreational activity which her employer had not induced, encouraged or countenanced. Accordingly, the Applicant’s injuries were unrelated to her employment, took place during her leisure time, and were of a private nature. As a consequence, her activity did not take place during an interval or interlude and did not arise during the course of her employment.

Federal Court Appeal

So Mrs Smith appeals the decision to the Federal Court and her lawyers challenged whether her ‘recreational activity’ was not countenanced by her employer, taking that to mean “tolerate or permit”. They also argued that the Tribunal erred in finding that sexual activity was not an ordinary incident of an overnight stay in a motel room on a business trip and therefore required the Federal Court to challenge the Tribunal’s “knowledge of human affairs”. No mean feat.

Whilst one has to wonder what goes on on judicial business trips, the Court agreed that there was no reason why an employee might not engage in lawful sexual activity during the course of such a stay, noting that it’s not as if it rarely occurs or is somehow “out of the ordinary”. However, the Court hastily noted that it was not necessary to resolve that particular issue.

The Federal Court also referred to Hatzimanolis where it expressly recognises that an interlude might be interrupted if an employee engages in an activity that is not induced or encouraged by the employer. They found that even if the employer had induced or encouraged the employee to spend time at a particular place solely for the purpose of allowing the employee to engage in a specific activity or range of activities, it may not be sufficient to establish that the employee had suffered his or her injuries in the course of employment simply because he or she suffered them while at that particular place.

While it was to be inferred that the Applicant was encouraged to use the motel room for obvious purposes, including relaxing, sleeping, bathing, eating and dressing, it was accepted by the Applicant that her employer did not encourage her to engage in sexual activity while in the motel room. Of course, the fact that the Applicant’s employer did not encourage her to engage in sexual activity does not mean that it disapproved of her doing so (again they wished they’d rewritten the conduct policy).

The Court said, in considering the correctness of the proposition that an interlude is interrupted when an employee embarks upon “a private activity” a question arises as to what that expression actually means (one can imagine a few worried expressions in the court room at the thought of that subjective test). If it means no more than an activity “unrelated to employment” then it merely states a conclusion which can only be arrived at upon a consideration of all relevant factors. However, if it means an activity usually undertaken in private, that does not assist in determining whether an interlude involving an overnight stay at a motel has been interrupted. Many of the activities which an employee might be expected to engage in during such a stay are engaged in private, for example in Comcare v McCallum (1994) 49 FCR 199 where an employee injured in a hotel room shower was found to have been injured in the course of her employment.

Again referring to Hatzimanolis, the Court considered there was a sufficient connection or nexus between the injuries suffered by the Applicant and her employment. They felt it sufficient that the Applicant’s injuries were suffered while she was in the motel room in which her employer had encouraged her to stay. Just because Mrs Smith was engaged in sexual activity that her employer might not have expected her to engage in, should not be seen as interrupting the interval or interlude and the relevant connection therefore continued. Poor Mr Smith’s interlude was certainly interrupted.

The Court felt that having sex in a hotel room was very like a game of cards (there’s a bad joke there somewhere) in that it was a lawful recreational activity. The nature of the activity need not have been induced or encouraged by her employer to entitle her to compensation and the Tribunal had erred in finding that was necessary.

Decision

The Court therefore set aside the Tribunal’s decision and found that Mrs Smith’s injuries were sustained in the course of her employment and awarded costs in her favour.

So the employer was ultimately left with a large bill, in addition to the motel expenses no doubt claimed by Mrs Smith at the time.

Implications for Common Law?

Ultimately the case simply follows the principles laid down in Hatzimanolis although perhaps in an unorthodox example. Fortunately it is not necessary to consider what the common law implications might be for a Queensland based employer and insurer. One can only imagine the kinds of questions that might need to be considered, for example: Was a risk assessment done of the activity? Was the assistance adequate? Were the plant and equipment ‘fit for purpose’? Was supervision required? Is there a potential PIPA claim?…

Strong v Woolworths Limited [2012] HCA 5

(Judgement 7 March 2012)

Defendants to slip and fall cases have recently been having significant success at trial and in settlement negotiations by arguing that their negligence did not cause the harm. They have had the powerful support of the New South Wales Court of Appeal’s decision in this matter to reinforce their position. The High Court has now overturned this decision.

Strong demonstrates that defendants ought to exercise caution in relying on a factual causation defence in cases involving the familiar difficulty of the plaintiff not knowing when a slippery hazard was deposited.

However Strong does not change the law and with appropriate evidence, a failure to establish causation will still provide a solid defence.

The Facts

By the time the matter made its way to the High Court the assumed facts were straight forward.

The Defendant (Big W) had the exclusive right under a lease with CPT Manager (the Centre) to conduct ‘sidewalk sales’. The plaintiff was an amputee who walked with the aid of crutches. At 12:30 pm she entered the sales area to inspect pot plants when the tip of her crutch came into contact with a chip or grease deposited with a chip, causing her to fall. The plaintiff’s daughter described the grease stain as being, “as big as a hand”.

The cleaning company engaged by the Centre was not responsible for cleaning the ‘sidewalk sales’ area. However their contract stipulated that they had to clean and inspect the adjacent area every 15 minutes.

Big W employed a ‘people greeter’ in the vicinity of the area, a cashier in the sidewalk area and otherwise instructed all employees to be “constantly vigilant” for spillages. However Big W conceded that they did not have in place a system of periodic inspection and necessary cleaning.

The District Court

His Honour Judge Robinson DCJ held that Big W owed the plaintiff a duty of care and that they were guilty of negligence for failing to remove the hazard. In ordering Big W to pay the plaintiff over $580K in damages His Honour did not address breach of duty or causation of damage.

The Court of Appeal

The sole ground of Big W’s appeal to the Court of Appeal was the implicit finding that their negligence caused the Claimant’s injury.
The Court found that reasonable care did not require the continuous presence of a person looking for slippery substances. However periodical inspections were required. The Court approached the issue of a reasonable system of inspection on the evidence most favourable to the plaintiff. That is that 15 minute inspections were required as was stipulated by the Centre to their cleaners.

However the Court reasoned that there was no reason for concluding that the chip was dropped outside the 15 minute period before the incident. In reaching this conclusion the Court found that the chip was more likely to have been dropped at lunch time and the area must have been busier at the time of the incident as was evidenced by the Centre’s engagement of a second cleaner.

The Court therefore found that Big W’s breach of duty did not cause the injury. Given the rarity of circumstances in which plaintiffs in these cases are able to prove when a hazard was deposited, this reasoning had been making it very difficult for Plaintiffs to succeed in these cases.

The High Court

By 4 (French CJ, Gummow, Crennan and Bell JJ) to 1 (Heydon J) the majority of the High Court overturned the Court of Appeal’s decision.
After conducting a detailed analysis of the case law and legislation relating to factual causation the majority found that for the plaintiff to succeed she needed to establish that if a system of periodic inspection had been employed, it is likely the chip would have been detected and removed.

It was not in dispute that had the area been inspected it is likely the chip would have been removed (i.e. the chip stain was apparently as big as a hand and was not on the edge of the corridor). In finding that the chip was more likely to have been dropped more than 20 minutes before the incident the Court rejected Big W’s submission that the plaintiff needed to point to some evidence permitting an inference as to when the chip was deposited.

The Court also rejected the Court of Appeal’s reasoning that the chip was more likely to have been dropped at lunchtime because chips are more likely to be eaten for lunch, as speculation. Further that the most the engagement of a second cleaner demonstrated was that there was some increased traffic at the time of the incident.

The Court found that reasonable care warranted inspections of not greater than 20 minutes. Accordingly the Court found that Big W were liable on the very simple basis that as the chip was more likely to have been deposited in the larger 4.5 hour period of trading rather than the 20 minute period before the incident.

The Implications

The High Court’s decision is somewhat of a cold shower for defendants seeking to rely on a causation defence in circumstances where they have breached their duty. The fact that a Plaintiff is not obliged to point to some evidence permitting the inference that a hazard was dropped at a particular time also shifts risk to occupiers based upon speculation that their negligence caused injury.

Given the relatively small dimensions of the sidewalk sales area one could also argue that having a system of periodic inspections is an unfair burden and that, “constant vigilance” ought to constitute reasonable care. Strong clearly indicates that certain retailers must have in place a system of periodic inspections.

However the decision does not alter the law and in appropriate cases a factual causation argument can still be the best defence to a claim. The key to identifying these cases is to conduct thorough investigations as quickly as possible after the incident. This minimises the chance that a plaintiff’s evidence about issues such as the size and nature of the hazard is accepted without dispute.

In particular defendants need to be on the lookout for cases where the inference can be drawn that it is more probable than not that the slipping hazard was deposited within the period, that it was reasonable to inspect. Some circumstances where this may be established include:

1. If an area was genuinely less busy prior to the commencement of the reasonable inspection period.
2. If there is some evidence that the hazard had been recently deposited. For instance, if in Strong the Court had of found that the chip was still warm, it would give rise to an inference that it had been recently deposited.
3. Plaintiffs often argue that the inspection periods were not adhered to without hard evidence. In these circumstances it is submitted that a Plaintiff will not establish breach of duty unless they have persuasive evidence in support.

However based upon the reasoning of Strong the defendant would also have a factual causation defence. For instance based upon 20 minute inspection period a Court would need to find that the area was unlikely to have been inspected for 40 minutes before they could find it was more likely than not that the hazard was deposited outside the inspection period. It is submitted that in most shopping centres and supermarkets this would be a heavy burden for a plaintiff to meet.

Elphick v Westfield Shopping Centre Management Company Pty Limited [2011] NSWCA 356

(Judgement 25 November 2011)

• The duty of care owed by Westfield was that of occupier. As in Australian Safeway Stores v Zalzuna that duty is “to take reasonable care to avoid a foreseeable risk of injury”.
• Where an occupier engages an independent contractor that duty does not give rise to a duty akin to the special duty of an employer to their employee.
• The occupier’s duty can extend to responsibilities for a system of work where there is an interdependence of the activities carried out (Stevens v Brodribb Sawmilling Co Pty Ltd ).
• Where the occupier has engaged the services of an independent contractor whose task it is to supervise its employees’ systems of work there may be no liability (Brodribb).

The Pain of Aggravations and Exacerbations – when work is not “a significant contributing factor” to causing an “injury”

The Case

The Industrial Court of Queensland recently handed down a decision in Theresa Helen Ward and Q-Comp (C/2011/39) on 7 December 2011 upholding the Queensland Industrial Commission’s decision that Theresa Ward did not sustain an “injury” pursuant to Section 32 of the Workers’ Compensation and Rehabilitation Act 2003 (“WCRA”).

A person is entitled to receive workers’ compensation if he or she was a “worker” and sustained an “injury” within the meaning of the WCRA.

Section 32(1) of the WCRA defines “injury” as:

1. A personal injury;
2. Which arises out of or in the course of employment; and
3. Employment is a significant contributing factor to causing the injury.

Section 32(3) also states that an “aggravation” of a personal injury can also amount to an “injury”.

Ms Ward claimed that she sustained a lower back injury and a right knee injury during the course of her employment with Donut King over a 5 month period from August 2007 and January 2008 as a result of repetitively packing crates of donuts during work.

There was no doubt that the Claimant suffered from lower back and right knee symptoms during the alleged period. She attended her GP, Dr Wong and reported those symptoms to him. The dispute was whether those symptoms were the result of her work or an underlying condition.

Ms Ward resigned from her employment with Donut King due to her lower back and right knee symptoms and lodged a total and permanent disability claim with her superannuation fund and income protection insurer, SunSuper.

SunSuper obtained a report from Dr Bloom, Occupational Physician who diagnosed Ms Ward with:

• Temporary exacerbation of early degenerative changes to the right knee;
• Temporary exacerbation of early degenerative changes in the facet joints and sacroiliac joints of the lower back.

Dr Bloom opined that Ms Ward’s work was not the cause of her underlying conditions to her lower back and right knee and her work did not cause a permanent change in those conditions. He said that the temporary exacerbation lasted a most a few weeks and thereafter he Claimant’s lower back and right knee returned to their pre-exacerbation state.

President Hall acknowledge that pain could amount to a personal injury despite there being no change in the underlying pathology, referring to the decisions of Pleming v Workers’ Compensation Board of Queensland and WorkCover Queensland v BHP (Qld) Workers’ Compensation Unit (2002) 170 QGIG 142.

However, President Hall found that the QIRC was entitled to accept the evidence of Dr Bloom who characterised the pain as an exacerbation rather than an aggravation, namely that the pain experienced by Ms Ward to her lower back and right knee was “brief and easily dealt with” and the degenerative conditions had not become worse.

Practical Implications

Both Dr Gillett and Dr Bloom during the QIRC hearing agreed that an aggravation is an acceleration of a pre-existing condition causing a permanent change to underlying pathology whereas an exacerbation is a temporary heightening of symptoms. This is of course in the context of the worker having a symptomatic history of symptom rather than an asymptomatic condition prior to the alleged incident or event.

Arguably, a diagnosis of exacerbation of a pre-existing condition will exclude a worker from being entitled to compensation as an exacerbation is not an aggravation and therefore does not meet the definition of “injury” under the WCRA.

Whilst that proposition appears academic, it is all too tempting for insurers and workers to depend on labels rather than substance when determining whether someone has sustained an “injury”.

To avoid any evidentiary gaps, experts should be briefed to address the following issues:

• The nature and extent of the underlying pathology
• Whether that underlying pathology was symptomatic prior to the alleged incident or event
• The cause of any pathology demonstrated through radiological investigations
• The relationship between the worker’s symptoms and work duties performed during that time
• Whether there has been any permanent change in the underlying pathology as a result of work
• If the expert is of the opinion that the worker suffered “temporary” symptoms from work, then the duration of when those symptoms would have resolved
• The cause of the worker’s ongoing symptoms

The above matters will assist with deciding whether work was a significant contributing factor to causing any personal injury or whether the worker’s underlying condition is the significant contributing factor to the worker’s symptoms which were the findings in Pleming, WorkCover Queensland v BHP (Qld) Workers’ Compensation Unit and Ward.

However, there is no magic formula in determining the threshold for “a significant contributing factor” especially where the decision maker is required to find whether work caused an aggravation or exacerbation to a pre-existing degenerative condition. It is a question of mixed fact and law and dependent upon the facts and evidence led in each case.

Georgina Wong

Author: Sunny Martin (Law Clerk)

Some recent Queensland decisions indicate that the bar to success for Claimants in workplace injury cases has been significantly lowered of late. In Tabcorp v Dank the Court of Appeal held an employer was negligent for failing to provide training and instruction on the correct method to lift a box of photocopy paper. In Brisbane City Council v Miles an employer was found liable for the injuries of a bus driver who was criminally assaulted whilst walking through a park with a cash box. However, Justice McMeekin’s recent decision in Stitz is a reminder that an employer’s duty is not absolute and that with a careful analysis of relevant factors and how they relate, “evidence” can become an employer’s best friend.

The Claim

The Plaintiff was employed by a labour hire company, working at the premises of the Australian Steel Company. He worked exclusively on a “Pratt Cutter”; a device used to cut steel rods which he alleged caused an injury to his lower back.

The Plaintiff alleged that every step of the system of work involved an unnecessary risk of injury. In particular:

(a) steel rods could become entangled causing him to have to lift and flick the rod to free it from the others;

(b) greater force than usual was required to manoeuvre the steel rods across the conveyor because several rollers were missing from it;

(c) there could be severe jolting when the rods missed the mouth of the cutter and struck the machine;

Alarm Bells

The Plaintiff provided numerous versions as to when he first suffered symptoms. Following the incident he continued to work for several days before reporting the injury to his supervisor. Most importantly the incident report and Notice of Claim for Damages did not raise “jolting” as a causative issue. Nor did the medical evidence consider “jolting” when assessing the Claimant’s injury.

Accordingly the Court was left to consider the remaining allegations regarding the rods becoming entangled and greater force being required to manoeuvre them due to the missing rollers. The Plaintiff’s evidence was that he was required to exert significant force when manoeuvring the steel rods which he described as being like pushing a rugby scrum.

In reply the Defendants provided evidence from long term co-workers that the above risk factors did not cause an appreciable increase in the forces required to manoeuvre the rollers.

The Findings

His Honour found that the system of work and plant was “plainly defective“. Further that if the defects had been remedied the risk of injury would have been reduced.

However his Honour also accepted the Defendant’s evidence that the forces that were applied to the Claimant’s back were modest and crucially “not likely to injure a man of normal fortitude“.

The Decision – Liability

His Honour held that “it has never been the law than an employer must remove all risk of injury“. Applying Kuhl v Zurich his Honour also determined that if the forces involved were “not likely to injure a man of normal fortitude” an employer is not required to remove the risk.

Given His Honour’s acceptance of the Defendant’s evidence regarding the modes nature of the duties the Claimant was subjected to the Plaintiff’s claim was unsuccessful.

Causation

The Plaintiff obtained a report from Dr Malcolm Wallace, orthopaedic surgeon who opined that he had sustained a significant injury “bending and pulling“. He also said his opinion was based upon there being “a specific work related injury to his lower back“.

The Defendants obtained a report from Dr Peter Boys, orthopaedic surgeon who recorded a similar history and opined that the Plaintiffs symptoms were caused by degeneration.

Given his Honour’s finding that the forces involved in the work were modest and that there was no specific incident he found that the opinions of both doctors were not based upon a “rational relationship with the facts proved“. Applying Makita v Sprowles therefore his Honour was unable to accept the evidence of either medical witness.

Accordingly if the Claimant had established liability he would have assesses the Claimant’s damages at $2,000.00.

Implications

1. Stitz will assist Respondents to defend claims where the allegations regarding the mechanism of injury made at trial are substantially different to the accounts provided in pre-court notices, incident reports and medical reports. In this regard the claims made at compulsory conference are often significantly different to those previously made.

2. It is not enough for a Plaintiff to establish that a system of work was defective. They must also establish that the system of work contributed to the injury and that the defects exposed them to forces likely to injure “a man of normal fortitude“.

3. It is not always a contest between the parties’ medical evidence. If the facts relied upon by the medical witnesses do not have a “rational relationship with the facts proved” all medical evidence ought to be rejected. This principle can be used to erode the credibility of any evidence that is based upon an inadequate history including where previous injuries have not been disclosed or where there is delayed reporting of symptoms.

STATE OF QUEENSLAND V ALLEN [2011] QCA 311

(JUDGEMENT 4 NOVEMBER 2011)

The Personal Injuries Proceedings Act 2002 (PIPA) and other pre-court regimes in Queensland significantly derogate legal professional privilege, perhaps more so than any other Australian jurisdiction.   Indeed in the often cited decision of Parr v Bavarian Steak House Pincus JA said “… the cards must be on the table; and, I might add they must be face up.”

Arguably, Plaintiff lawyers have used the openness promoted by the disclosure provisions of PIPA to pursue claims where the existence of liability is speculative, in the hope that the respondent will provide the evidence needed to obtain a settlement.  The Court of Appeal’s decision in Allen helps restore some balance and provides useful guidance in this difficult area.

 
The Facts

  
The Claimant was diagnosed with severe brain damage as a result of a medical procedure he underwent in a public hospital when he was 9 months old.  Following the procedure the State engaged Minter Ellison to advise it in respect of future ‘medico-legal risk’.   Given the lack of documentation in the medical record about the incident Minter Ellison recommended statements be obtained from the doctors involved.

 
Minter Ellison subsequently forwarded lists of questions to the hospital to be answered by the doctors and requested the doctors provide a “report” to be marked “privileged and confidential”.  Minter Ellison also had conferences with some of the doctors and produced file notes as a consequence.

 
The Claimant delivered an “initial notice” to the State (a specific requirement in medical negligence cases).  In response the State’s new solicitors mistakenly disclosed some of the material that had been created as a consequence of the recommendations of Minter Ellison, including a tax invoice. 

 
The mistaken disclosure of the privileged documents caused the Claimant’s solicitors to become aware of further documents that were either mentioned in the documents or inferred to exist.

 
The Decision at First Instance

Justice Applegarth found that a broad range of documents were privileged because they came into existence for the dominant purpose of anticipated litigation.  These documents included witness statements, reports by doctors involved in the procedure about their recollections and file notes created by Minter Ellison.  However his honour ordered that the documents be disclosed nonetheless on the basis of section 30(2) of PIPA which provides that “… investigative reports, medical reports and reports relevant to the claimant’s rehabilitation must be disclosed even though otherwise protected by legal professional privilege…” (our emphasis).

 
The Appeal

 
Although the disclosure of various documents was in issue, in the initial hearing of the matter the only documents that were in contention on appeal were two file notes of conversations between the State’s solicitors and two of the doctors and a document prepared by one of the doctors.

 
The appeal turned on the definition of investigative and medical reports.  Despite their importance to the conduct of personal injury litigation, those terms are not defined by PIPA.

  
The Court unanimously determined that the solicitor’s file notes were not “reports”, within the ordinary meaning of the word and hence were not required to be disclosed.   It was further held that whilst file notes could be characterised as “reports” the circumstances would be unusual. 

 
However again simply adopting the ordinary meaning of the word “report” the account of events provided by one of the doctors was found (by majority) to be a “medical report”.  This document was required to be disclosed.  Notwithstanding this Justice Fryberg found that a properly taken statement or “proof of evidence” by a solicitor would not be required to be disclosed.

 
It is noteworthy that each of the three justices provided different reasons in support of the decision. Fraser JA in dissent determined the account provided by the doctor was not a medical report.  This disagreement outlines the difficulty that Respondents and their solicitors face in determining whether documents are required to be disclosed, and how to protect documents that have historically attracted legal privilege from disclosure.

 
Implications

1. It is now clear that statements obtained by a solicitor are not required to be disclosed.  However, statements taken by factual investigators must be disclosed.  Accordingly, consideration must be given to how factual investigations should be undertaken.  Careful consideration to the way in which factual investigations are conducted can ensure that the right investigations are conducted and that the Respondent does not inadvertently make the Plaintiff’s case.

2. Although the account of events provided by one of the doctors was required to be disclosed this could easily have been avoided by obtaining this information in a statement or a solicitor file note.

3. It is now clear that Respondents are able to instruct operational staff to speak freely to investigating solicitors.

4. Care must be taken by solicitors in creating file notes of telephone conversations with potential expert witnesses.  In Allen , although Watkins v State of Queensland (which required the disclosure of such file notes) was criticised it was not overruled.

5. Justice Fryberg criticised the State for attempting “conceal the full course of investigation”.  Whilst it would be inappropriate for a respondent to conduct standard enquiries into an incident under the guise of legal privilege (for instance, as a consequence of responsibilities under the Workplace Health and Safety Act 1995), investigations conducted in response to a claim are of a different nature.  The Allen decision provides limited circumstances in which investigations can be conducted under legal privilege.

 
Chris Murphy
Senior Associate
Queensland Law Society Accredited Specialist in Personal Injury Law

Hannah v Barellan Bobcat Hire Pty Ltd was a claim for personal injuries made against an employer by a worker as a consequence of a workplace assault. 

It is worth considering due to recent cases proceeding to the Court of Appeal relating to workplace assaults, one of which was successful (Brisbane City Council v Miles [2011] QCA 250) and one of which was not (Lusk & Anor v Sapwell [2011] QCA 059).

However both Miles and Sapwell involved allegations of negligence on the part of the employer for third party criminal activity.  Hannah relates to an alleged assault by a co-worker and employer.
 

The facts

The Defendant, Barellan Bobcat Hire, was a family company owned by the Plaintiff’s mother and father.  The Plaintiff’s brother also worked for the family business. 

The Plaintiff was sent to a job site on the 8 July 2008 to perform work at a building site.  He encountered a mechanical failure with the bobcat that he was operating. 

The Plaintiff alleges that when he called the employer to advise them of the fault, his mother was aggressive.  He claims that when he got back to the office, his brother and mother assaulted him.

The Plaintiff sued the company claiming that the company was liable for the actions of the Plaintiff’s mother and brother.  He claimed that the Plaintiff’s mother was the “directing mind and will of the corporation”.  He also claimed that, in addition or in the alternative, the actions of his mother and brother represented either a breach of contract, breach of duty or breach of statutory duty.

The employer provided a different version of events.  The Plaintiff’s brother claimed that he heard yelling as he returned to the office.  The Plaintiff’s brother entered the office and asked the Plaintiff to calm down after which the Plaintiff shoved him and the scuffle ensued. 

The Plaintiff’s credibility was called into question.  Under cross examination, he admitted that his brother did not actually have him in a head lock, but had him in a bear hug.  He also did not see his mother use a golf club to hit him, he just drew this conclusion as he had seen her previously holding a golf club.

The Plaintiff had failed to disclose that he had used illicit drugs when directly asked by 2 psychiatrists.  He attempted to explain his lie by saying that if he told the psychiatrists about his drug use, they would only concentrate on this aspect when providing their reports. 

His Honour stated that “when he lied to the psychiatrists about his drug use he knew that their reports were to be used for the purposes of litigation”.  He regarded the Plaintiff’s explanation as nothing more than “a flimsy self-justification designed to evade the consequences of his dissembling behaviour”.

His Honour preferred the evidence of the Plaintiff’s brother and mother, finding that the Plaintiff instigated the altercation by assaulting the brother, and then wrestling with him until they fell to the floor.  His Honour found that the injuries suffered by the Plaintiff were a consequence of his own actions and that his brother was only doing that which was necessary to protect himself. 

Discussion

Unfortunately, his Honour did not discuss many of the interesting potential legal issues raised by the claim.

For example, his Honour did not consider the legal issues in relation to whether the employer was liable for the actions of the plaintiff’s mother as “the directing mind and will of the company”.  Such issues were considered in the case of Midwest Radio v Arnold [1999] QCA 020 and Nationwide News v Naidu [2007] NSWCA 377 where it was found that the harassing actions of a manager were the actions of the company. 

One could argue that the actions of the co-worker were not authorized or permitted by the employer and that the actions of the Plaintiff’s brother were personal and of his own volition, such as was found in the case of Deatons Pty Ltd v Flew (1949) 79 CLR 370.

Often cases involving workplace assaults will involve considering whether employment was a “significant contributing factor”, or merely provided the setting in which the assault occurred (Keefff Taylor-Lawton v QComp 20209/09, Decision of IM Lee of the Brisbane Industrial Magistrate Court delivered 19 April 2010).  Given the relationship between the parties in this case, that may well have been relevant to the tension, which lead to the altercation.

There might also be reason to consider whether the injury was caused by misconduct, within the meaning of section 130 WCRA, such that compensation is not payable (see Keefff Taylor).

The decision does highlight the importance of the Plaintiff’s credibility in cases where the facts are disputed. The Court was not impressed by the Plaintiff’s lies in relation to his illicit drug use and this in turn lead to his Honour disbelieving the Plaintiff’s entire story as to how the events of the day in question transpired.

The Queensland Industrial Relations Minister has recently announced the formation of a workplace bullying reference group to examine options for action that could be taken in Queensland to address bullying in the workplace, mirroring similar action recently taken by the Victorian legislature.  The Minister says that the reference group will look into the incidence of bullying in the state and strategies to prevent bullying in Queensland workplaces.

Participants in the group will be drawn from worker and employer representatives and legal and academic experts with recommendations expected by the end of 2011.

The group is expected to review the existing Workplace Health and Safety Queensland Prevention of Workplace Harassment Code 2004 and the effectiveness of other legislative provisions in Workplace Health and Safety, Discrimination and Criminal laws.

The move to reviewing existing legislative provisions is prompted by Victoria introducing the Crimes Amendment (Bullying) Bill 2011 in response to the tragic death of a young cafe worker who was bullied by co-workers and took her own life.  Workplace bullying was effectively criminalised with the definition of the criminal offence of stalking extended as a result of the Victorian amendments.

The stalking offence now includes a relatively wide provision of ‘acting in any other way that could reasonably be expected to cause physical, mental, or self harm’ and carries penalties up to 10 years imprisonment.

The primary reason for changes to the criminal law was public pressure for jail terms to be an option for punishment of such offences as opposed to fines or other orders under Occupational Health and Safety laws.  The Victorian criminal offence would only apply to the perpetrator of the bullying or harassment and not directly to an employer of the perpetrator unless they could be somehow found to have ‘acted’ in conjunction with the offender in causing the harm.  The potential wording of any new Queensland legislation should be carefully reviewed by employers if new criminal offences are proposed.

Whether any extension of the law in Queensland is required will be a moot point given that existing criminal laws already allow for punishment of serious offences against persons whether they occur in the workplace or not.  Therefore whether any changes that are introduced actually result in additional offences or penalties might not be as significant as the media interest and community awareness that new laws will bring to the problem of workplace bullying.

Workplace bullying is an issue which affects a significant number of workplaces in one way or another and employers should actively consider the procedures they have in place to communicate expected behaviours for employees.  This includes ensuring frontline management have a good understanding of identifying problems at an early stage and taking documented action.

The costs to employers with wasted productivity and absenteeism can be minimised with early intervention and can prevent these issues progressing to the stage of a psychological/psychiatric injury with exposure to a workers’ compensation claim or common law claim.

Employers are generally not responsible (‘vicariously liable’) for criminal conduct (i.e. assaults) by their employees because such conduct does not flow from the course of employment.  Particular conduct of employees such as verbal abuse or threats by co-workers can also fall outside an employer’s liability as demonstrated by cases such as Cranston v Consolidated Meat Group Pty Ltd if an employer has in place appropriate policies and procedures to educate employees about expected behaviour.

In Nationwide News v Naidu it was also noted that if an employer is not aware of particular bullying or harassment then the Plaintiff can fail in negligence because the resultant injury was not foreseeable. However, if an employer knowingly observes or perpetuates such conduct or fails to respond to complaints by other employees about the conduct then they put themselves at risk of being found to have failed to provide for the safety of their employees in the workplace and breached their duty of care.

Any changes to the existing laws will need to be carefully examined by employers to determine the effect that new laws may have on their common law duty of care to their employees.

Bruce Thomas Lawyers regularly runs workshops to assist employers in understanding their obligations. These workshops cover such issues as of bullying and harassment and provided practical recommendations to assist employers manage their workforce to avoid costly claims.

Please contact us for more information.

President Hall of the Industrial Court upheld the Industrial Magistrates’ Court’s decision that driving a motor vehicle in excess of the speed limit into a residential home does not amount to a contravention of 328A of the Criminal Code in respect of dangerous driving.

A Driving Disaster

On 29 July 2009, sometime between 5.00 am and 5.15 am, Peter Dalla-Costa got into his 6 cylinder automatic Ford sedan motor vehicle and started the journey from his home to his place of employment at Hendra. 

He travelled down his street and around the corner, but then drove over to the right hand side of the road and mounted the footpath.  His car then crashed into a guardrail surrounding a culvert and was thrown back over to the left side of the road through a yard before crashing into a house.

Mr Dalla-Costa suffered severe injuries and in particular brain damage when his head was struck by the metal guardrail.  He was treated at hospital for around 13 weeks for his injuries.

Compensation Claim Rejected

Workers who are injured on the way to work are entitled to workers compensation.  However, that does not apply where the worker is driving a car and commits the offence of “dangerous driving”­ (s. 36(2)(a)(ii) of the Workers Compensation and Rehabilitation Act 2003).

Mr Dalla-Costa’s employer, a self insurer, understandably rejected the claim on that basis.  Q-Comp overturned that rejection and the self insurer appealed that decision.

“But I Wasn’t Convicted!”

Mr Dalla-Costa argued that the exception did not apply to him because he was not convicted of the offence of dangerous driving. 

The court agreed with the self insurer that a conviction was not required to exclude the right to compensation.  All that mattered was that the worker had in fact committed dangerous driving.

Dangerous Driving

The self insurer argued that Mr Dalla-Costa had committed dangerous driving by:

• Driving in excess of the speed limit of 50 kph;
• Allowing the vehicle to cross to the wrong side of the road;
• Allowing the vehicle to mount the footpath and strike a barrier and then hit a house.

There was no evidence that there was a mechanical fault with Mr Dalla-Costa’s motor vehicle or that he suffered from a medical condition that caused him to lose control of the vehicle.

Police conducted a speed analysis at the site after the accident and determined that Mr Dalla-Costa was travelling at a speed of around 96 kph when the accident occurred (almost double the speed limit).  Independent Engineers engaged by Mr Dalla-Costa concluded that he was probably travelling at a speed of around 74 kph (a mere 50% over the limit!).  Their evidence was preferred to the police estimate.

Dr Grigg gave evidence that the cause of Mr Dalla-Costa’s accident was not speed but that the car had travelled on to the footpath (from the wrong side of the road) and had crashed into the metal guardrail. The Industrial Magistrate agreed with that finding.

One must wonder what caused the car to cross out of control onto the wrong side of the road and mount the footpath at speed if it was not speed, medical condition or mechanical defect?

The Industrial Magistrate allowed Mr Dalla-Costa’s claim and found that:

• Everything that happened after Mr Dalla-Costa lost consciousness was not the result of his action and could not represent dangerous driving (although he lost consciousness because he could not keep his car from driving at speed into a guard rail).
• As the accident occurred early in the morning and there were few or no people in the vicinity.
• His actions did not amount to “dangerous driving” because there was no real prospect of harm to the general public from his actions.

The self insurer appealed that decision to the Industrial Court, but had no better luck there.  President Hall agreed with the Industrial Magistrate’s reasoning that a contravention of Section 328A of the Criminal Code must involve a real, and not speculative, danger to human beings who may be in the vicinity of the roadway where the driving took place.

Summary

Evidently driving at 50% over the speed limit, jumping a curb, crashing into a barrier and then a house is not “dangerous” if there is no-one around.

The finding that Mr Dalla-Costa was not responsible for the movement of the vehicle after he lost consciousness seems to overlook why he lost consciousness – he lost control of the car at speed and hit a barrier.

The explanatory notes to the legislation that enacted the exclusion for journey claims resulting from dangerous driving provided:  WorkCover Queensland Bill 1996 at page 21 state that:

“The circumstances when journey claims are not payable have been expanded to include where the event causing the injury was partly or wholly caused by the fault of the worker i.e. a worker’s actions. ……. These exclusions will limit employer’s responsibility for claims where the worker is directly responsible for the injury”.

It seems Parliament intended to exclude compensation for injuries where the worker was directly responsible for causing his or her injury.  In this case however one must wonder whether Parliament’s intentions have been given effect.

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