(Judgement 25 November 2011)

Claims involving employees of independent contractors and their principals are increasingly common.  The amendments to the Workers’ Compensation and Rehabilitation Act 2003 in Queensland which mean Claimants will recover more against an occupier than their employer in these cases will make them more common (even where liability is weak).

As the New South Wales Court of Appeal conceded in Elphick, the decided cases have at times shown an “uncertainly of approach”.  Elphick is a reminder that a principal’s duty is different to and lower than the special relationship an employer owes an employee.  Against this background an employer should never just assume they are entitled to contribution from their principal.

The Facts
The Plaintiff was a 33 year old cleaner employed by ACS at a large Westfield Shopping Centre.  He suffered a serious injury to his lower back whilst moving cardboard from a cage to a compactor.   The system of work required the Plaintiff to attach the cage to a bollard with bailing twine.  This mechanism meant the cage was unstable and moved back and forth during unloading.

Due to the dimensions of the cage it was necessary for the Plaintiff to get inside the cage to empty it.  As a consequence of stepping into the unstable cage the Plaintiff sustained an injury to his lower back which later required a laminectomy and spinal fusion.

The Trial
Other than the seriousness of the injuries, the facts in Elphick are similar to thousands of other claims every year.  The important findings at trial were as follows:

• Westfield “probably” owned the cage and compactor but made them available to ACS.
• The positioning of the cage in the loading dock including the use of the bailing twine was performed exclusively by ACS employees.
• The Plaintiff did not receive any training and instruction in the unloading of the cage.
• Upon learning of the accident Westfield provided the ACS workers a metal hook to reach and extract the cardboard boxes.  Westfield also placed a warning sign in the dock area that cleaners were not to stand in the cage.
• Other changes were made (“probably” by Westfield) including placing carpet inside the cage to avoid boxes being stuck and fitting bolts to secure the cage.

The Plaintiff argued that Westfield’s obligations did not differ in any relevant respect to that of an employer and that they “virtually” supervised ACS.  The Plaintiff also led evidence from a co-worker who said that he complained to Westfield maintenance staff about the cage and was told that the problem would be fixed.  The Plaintiff also led evidence from an expert who opined that Westfield “should have done more the make the cage safe”.

The Decision
Not surprisingly, Hungerford ADCJ found ACS was liable and awarded the Claimant $525,658 in damages.  Notwithstanding Westfield had supplied the cage, received  complaints about the cage and apparently took measures to prevent the injury afterwards, that the claim against Westfield was dismissed.

His Honour would have assessed damages against Westfield at $822,569 because they were not limited by the Workers’ Compensation Act 1987.  This anomaly of tort reform is perhaps the reason the Plaintiff chose not to simply pursue a claim solely against her employer.

His Honour reviewed the authorities relating to the duty of care owed by an entrepreneur to an employee of an independent contractor and relied  on the ”guides” expressed by Basteen JA in Sydney Water Corp v Abromovic and Anor[i].  These guides state that one of the following must be satisfied to give rise to a relevant duty:

• The principal directs the manner of performance of the work.
• The work requires the coordination of the activities of different contractors.
• The principal has or ought to have knowledge of the risk and the employer does not and cannot reasonably be expected to have such knowledge.
• The principal has the means to alleviate the risk and the employer cannot reasonably be expected to do so.
• Although the employer has or should have the relevant knowledge and can be expected reasonably to take steps to alleviate the risk, it does not, to the knowledge of the principal do so.

His Honour concluded that none of the above indicia had been met and hence that Westfield did not owe the Plaintiff any relevant duty.
The Appeal
The Plaintiff appealed the decision at first instance.

Appeals and cross appeals were also filed as between Westfield and ACS in relation to a contractual indemnity clause.  The indemnity was not relevant to the payment of damages because the verdict in Westfield’s favour was upheld.  However interestingly it was held that Westfield was entitled to rely on the indemnity to obtain their costs in defending the claim.

In dismissing the appeal the Court provided the following useful summary of the relevant principles that apply to this difficult species of case:

• The duty of care owed by Westfield was that of occupier.  As in Australian Safeway Stores v Zalzuna[ii] 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.[iii]
• 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[iv]).
• 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 Court emphasised that the Brodribb principles require a “fact-sensitive enquiry.  An important part of the “fact-sensitive enquiry” in Elphick was that the cleaning contract included extensive obligations on the part of ACS regarding its responsibility for the system of work of its employees.  Further than in carrying out the contract Westfield had not “collaborated” with ACS on this system of work.

Perhaps the most crucial determination was that the incident was caused due to the system of work rather than a problem with the cage.
Procedural Issue
ACS appeared in the appeal by two separate solicitors because the interests of its insurer diverged from its own in relation to the contractual indemnity point.  In obiter Young JA held that the assumption that a party had the right to do this was a “myth that should be exploded”.

This finding has important implications because it is a very common practice.  The implication is that insurers and insureds will just need to cooperate.
Implications
This case is the latest in a long line dealing with the obligations of an entrepreneur to an employee of an independent contractor (Brodribb, Leighton and Abromovic).  However it is a powerful reminder that the duties of an entrepreneur are significantly different to that of employer to an employee.  In these cases the entrepreneur’s mere presence is not enough to give rise to a finding of liability.

In these cases a “fact-sensitive” enquiry needs to be undertaken.  This enquiry needs to focus on whether given the entrepreneur’s lower duty they are liable for a cause of the incident in fact taken any responsibility for the system of work.  The key issues in the enquiry are whether the entrepreneur has taken over part of the system of work, whether there are interdependent activities between different contractors and whether their defective plant or equipment contributed to the incident.

The case also demonstrates that a carefully drafted contract is capable of protecting an entrepreneur against claims by employees of its independent contractors.

[ii] (1987) 162 CLR 479

[iii] Leighton v Fox [2009] HCA 35; (2009) 240 CLR 1

[iv] [1986] HCA 1; 160 CLR 16

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 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 Therapist 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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The Factual Background

The Plaintiff worked as a medical sales representative at the Defendant’s premises at Cleveland.  Those premises were divided into a number of work stations or cubicles.  The Plaintiff’s work station comprised a partitioned area containing a desk and a chair on castors. The partition wall on her left hand side had a number of overhead shelves while the partition wall on her right hand side had a map attached to it.

When the Plaintiff first commenced work, the chair was positioned on the carpeted floor. However, some weeks after commencing employment, plastic mats were provided by the Defendant and placed under the chair in each work station. 

The Plaintiff was planning a sales trip on the day in question.  She stood up from her chair to retrieve a book from the top shelf on the left hand side of her work station then turned to look at the map on the right hand side of the work station. As she commenced to sit back down, she found the chair wasn’t there and fell to the floor fracturing her sacrum. 

In addition, the Plaintiff claimed to have developed a secondary psychiatric/psychological injury.

The Evidence at Trial

The Plaintiff’s Evidence

The Plaintiff gave evidence that some weeks after she was employed in the office she was instructed to place a plastic mat under her chair.  The Plaintiff complied with that request but found that her chair had a tendency to move very quickly over the plastic mat.  She complained to the Defendant’s Office Manager, Ms Henderson a few days after the mats arrived that she found the mat was “extremely, extremely slippery”. 

In addition, the Plaintiff called evidence from a co-worker, Ms Penhaligon, who used a similar chair and mat in an adjoining work station. Ms Penhaligon also gave evidence regarding the propensity of her chair to slide quickly over her mat.  She said she complained to the Defendant’s Office Manager, Ms Henderson, in the Plaintiff’s presence that the mats were “dangerous and hazardous”. That evidence was corroborated by the Plaintiff.

 Both the Plaintiff and Ms Penhaligon gave evidence that the Office Manager directed them that the mats must remain at the work stations.  In particular, Ms Penhaligon said she was told that “the mat was part of the refurbishment and management want [them] there”.  The Plaintiff’s evidence was that she was simply told the work stations were to be the same.

The Defendant’s Evidence

The Defendant called 3 witnesses who had experience with the use of mats similar to those used by the Plaintiff, namely Ms Burchardt (the Defendant’s National Sales Manager), Ms Forster (National Manager, Corporate Services of a company associated with the Defendant and which occupied a neighbouring building) and Ms Bain (the Defendant’s former Office Manager).  These witnesses gave evidence to the effect that they had all used plastic mats over many years and had worked in places where the mats were widespread without ever suffering any similar incident themselves or hearing of such an incident.

In addition, Ms Burchardt gave evidence that before the subject incident, neither the Plaintiff nor anyone else complained to her about the mat. 

The Primary Judgement

The matter was heard before Justice Boddice in the Supreme Court of Queensland in Brisbane on 14 – 15 July 2010.  Judgement was delivered on 30 July 2010.

His Honour rejected the following arguments advanced by the Defendant at trial:

1. The mat had no causal relationship with the Plaintiff’s fall as the Plaintiff simply slipped from her chair when she attempted to resume her seat (i.e. a scenario consistent with the version given by the Plaintiff to her general practitioner that she had “slipped bum off edge of chair and landed on tail bone”);

1. Even if complaints were made, a reasonable employer must balance the various risks in the workplace. The evidence given in the Defendant’s case showed there were no other incidents involving the mats and provision of the mats overcame difficulties using the chair directly on the carpeted floor. 

Firstly, His Honour rejected the Defendant’s submission that the Plaintiff simply slipped off her chair. He found the Plaintiff to be a credible and reliable witness and accepted her evidence as to the circumstances of the fall.  His Honour did not consider the entry in the general practitioners records was inconsistent with the Plaintiff’s evidence that the chair rapidly and suddenly moved from under her body as she was trying to resume her seat causing her to fall to the floor. 

Secondly, His Honour rejected the Defendant’s contention that, even though complaints were made to it, it was reasonable for it to nevertheless insist on the mats being used at the work stations.  Importantly, His Honour was of the view that:-

“… An employer is obliged to provide a safe workplace.  In satisfying its obligation in this regard, a reasonable employer ought to have regard to complaints made by employees as to the safety of equipment they are directed to use in the course of their employment.  Despite receiving complaints from two employees as to the use of the mats, and requests from those employees that they not be required to use those mats, the Defendant directed those employees, including the Plaintiff, to continue to use those mats.  No evidence was lead to suggest that any investigation of the complaints was undertaken at all.  No reason was given to either complainant as to why they were required to use the mats.  According to the Plaintiff, Ms Henderson simply indicated her orders were that all work stations were to be “the same”.

In my view, the stance adopted by the Defendant was an unreasonable stance having regard [to] the risks associated with the continued use of the mat in circumstances where the Plaintiff had expressly complained that it was “extremely slippery”.  Evidence that other employees had indicated, after the event, a preference for use of the mats on the basis it rendered it easier to move a chair rather than having the chair placed directly on the carpeted floor, was of no forensic weight.  Those particular employees were not called, their particular circumstances were not known, and that evidence was inconsistent with the evidence of both the Plaintiff and Ms Penhaligon that they had no difficulty moving the chair across the carpet.  I accept and prefer the evidence of the Plaintiff and Ms Penhaligon on that matter”.

Accordingly, the Defendant’s failure to adopt a reasonable response to the risk of injury constituted a breach of the employer’s duty of care to the Plaintiff. 

The Plaintiff was awarded net damages of $419,461.36 clear of the WorkCover refund ($54,886.97).  That included general damages of $60,000.00, past loss of income of $55,000.00 and future loss of income of $265,644.00. 

The Court of Appeal Judgement

The Defendant appealed that decision contending that the claim should have been dismissed or that the amount of damages awarded to the Plaintiff for some items of loss should be reduced. 

The matter was heard in the Court of Appeal on 18 February 2011.  The Court (comprising Muir JA, Fraser JA and Chestermann JA) provided reasons for decision on 15 March 2011.  Fraser JA provided the leading judgement, with Justices Muir and Chestermann concurring with the proposed orders. 

The issues in the appeal involved questions of fact and the adequacy of the Trial Judge’s reasons in the particular circumstances of that case.

Justice Fraser noted that the Trial Judge’s findings depended in part upon the assessment on the oral evidence, which His Honour had the advantage of seeing and hearing as the trial unfolded.  Ultimately, he did not consider that there was any basis with justified the Appeal Court interfering with those findings. 

In reaching that decision, His Honour thought that it was relevant that the Defendant’s Office Manager, Ms Henderson, was not called by the Defendant to rebut the evidence provided by the Plaintiff and Ms Penhaligon that the mat and chair in question were not tendered in evidence, that there was no expert evidence to contradict the Plaintiff’s evidence on the propensity of her chair to move surprisingly rapidly over the mat and there was no evidence to contradict Ms Penhaligon’s evidence that after the accident the Plaintiff’s chair was found off the mat and out of the cubicle. 

His Honour also rejected the argument that the trial judge had reversed the onus of proof by concluding the mat was “unreasonably slippery”, given the essentially unchallenged evidence provided by the Defendant’s witnesses. Rather, His Honour noted that the evidence provided by those witnesses (Ms Burchardt, Ms Forster and Ms Bain) did not materially conflict with the evidence produced on behalf of the Plaintiff about the behaviour of the chair on the mat in her cubicle or the evidence of the complaint made to her immediate supervisor, Ms Henderson. 

Accordingly, the Court held that the Trial Judge’s finding that the Defendant was liable should be affirmed.  In addition, it rejected the Defendant’s challenge to the Trial Judge’s assessment of the Plaintiff’s damages. 

The Significance of the Decision

This is a decision which turned very much on its own facts.  That is, it is not to say that the plastic mats commonly found in office premises are dangerous per se.  The critical issue in this instance was the reasonableness of the employer’s response to a risk of injury in circumstances where it had been expressly notified of that risk by both the Plaintiff and a co-worker. 

The Trial Judge found, and the Court of Appeal affirmed, that in satisfying its obligation to provide a safe workplace, a reasonable employer ought to have regard to complaints made by employees as to the safety of equipment they are directed to use in the course of their employment.  In the absence of any investigation into the cause of the complaints, it will be difficult for an employer to establish that it has satisfied its obligations in that regard.

On 5^th April 2011 Coroner John Hutton delivered his findings following an inquest into the death of baby Samara Lee Hoy who died shortly after birth on 8^th November 2008 at John Flynn Private Hospital (“JFH”), a private hospital on the Gold Coast run by Ramsay Health Care.

Samara was delivered by Ventouse extraction (suction cap) after a prolonged second stage labour.  An autopsy examination concluded that baby Samara died of asphyxia caused by an umbilical cord wrapped tightly around her neck.

The facts regarding the management of the delivery make disturbing reading.  They highlight not so much isolated errors or slips on the part of the midwives and the consultant obstetrician, Dr Doolabh, rather prevailing incompetence throughout the entire delivery.  The Coroner described their actions or lack of them as “woefully inadequate” and stated there was a “systemic breakdown” in the management of the labour.

The case has grabbed the headlines primarily because Coroner John Hutton, pursuant to Section 48 of the Coroners’ Act referred Dr Doolabh to the Medical Board of Australia for his conduct and ordered that the matter be referred to the Director of Public Prosecutions to consider whether charges should be brought against Midwife Fankhauser for altering the notes and trying to pervert the course of justice.  The Coroner found that Midwife Fankhauser had altered the notes at some point after 12^th November without making it clear that she had altered them and when. He said it could be inferred by a jury that the alterations sought to record a different timing of events and represent a “false version of events and an untruthful story”.

It is understandable that these more sensational aspects of the case have made front page news.  However, contained within the findings are arguably more important elements such as the 21 recommendations, 19 of which are of general application to all obstetric departments and health care professionals.

In addition, now that the inquest is over, questions are likely to be asked in relation to broader and more fundamental issues such as the adequacy of credentialing procedures at the hospital and the failure on the part of JFH and the staff there to report the practitioners involved to their respective professional bodies either at the time or shortly afterwards. 

The 19 recommendations are as follows:

1. All women should have access to balanced antenatal information and classes clearly outlining normal and abnormal labour, when intervention may be required and why it may be necessary.

The classes should clearly outline:

• The possible risks of intervention and the possible risks of not utilising the intervention method;
• The parents should be encouraged to raise any issue, discuss and ask any questions they are so inclined to ask during classes, pregnancy and labour;
• The circumstance of the attendance of each medical professional during labour so that the parents are more likely to have an understanding of the expectation of the attending medical professional; and
•  Should involve both midwife and obstetric facilitation.

During the inquest it was noted that the layout of the antenatal literature given to the parents and the manner in which intervention was described was not positive and balanced.  That the antenatal information should be “balanced” perhaps goes further and deeper than many may at first suppose.  It covers the font, layout and background used as well as the words themselves;

2. Women should have an opportunity to discuss their labour antenatally with their midwife and obstetrician and address the issue of when and why intervention may be required.

This is at the heart of the ongoing battle between midwives and obstetricians.  Midwives sometimes accuse obstetricians of intervening unnecessarily too often and that talking at length about complications and adverse outcomes scares expectant mothers which in turn causes problems.  Obstetricians on the other hand argue that they are only acting in the best interests of the mother and baby and that it is their role to prevent death and injury to either of them which until relatively recent times was an all too common occurrence.

 3. The underlying guiding principle of maternity care is to achieve the outcome of a healthy mother and infant.

•  If a couple choose to have a “birth plan”, they should write their preferences down so their wishes are clearly communicated to the staff caring for them during labour.  The plan should recognise that intervention may be required if necessary;
•  Couples should be made aware that it is not realistic to have a birth plan for “natural childbirth” at all cost as natural childbirth is not always normal and intervention may be required under certain circumstances to give the best possible outcome.

4. Intervention when required should be carefully explained by the attending midwife and obstetrician to ensure patients understand:

• Why the intervention is necessary;
• The scientific evidence behind the need to intervene; and
• The appropriate risks and benefits of intervention in accordance with the duty to provide fully informed consent.

5. A mother refusing intervention despite recommendations by an obstetrician to use an intervention method is a very serious matter.  The risks of using intervention and not using intervention should be clearly outlined in antenatal classes and discussed with the mother antenatally by her obstetrician and midwife.  Any refusal should be carefully documented both at the time of the discussion and during labour;

 6. All midwives and obstetricians should:

•  Be familiar with the RANZCOG CTG foetal surveillance guidelines and implement these CTG guidelines in their clinical practice;
• Attend regular CTG courses as part of their continuing professional development; and
• Attend regular CTG review meetings to review and improve outcomes in the maternity unit.

 Midwives must be trained to recognise abnormal FHR patterns.

 7. All maternity units should encourage their midwifery obstetrics staff to attend:

• Obstetric emergency courses such as ALLSO/MaCRM/moet such as to encourage and optimise professional team work and collaborative practice in the maternity community between midwives and obstetricians; and
• Neo-natal resuscitation workshops.

8. Ongoing professional development for midwives to ensure they are:

• Competent in distinguishing and documenting abnormal from normal progress in pregnancy and labour;
• Refer to obstetricians in a timely and appropriate manner for ongoing care when pregnancy and labour become abnormal; and
• Follow evidence based guidelines and scientific evidence in their clinical practice.

 9. All maternity units should ensure there are clear guidelines and instructions for midwives as to when to refer to obstetricians;

10. All maternity units should have a paediatrician or staff member capable of intubating a baby available, to be present:

•  At all deliveries where meconium is present;
• Where there is evidence of foetal distress in labour; or
• Any instrument delivery or caesarean section.

11. All maternity units should schedule paid time for all staff and attending medical professionals to familiarise themselves with all policies, procedures and guidelines in place at the unit and for any changes to the guidelines.  Understanding of the policies and guidelines should be formally assessed at least annually;

12. The Admission Policy should contain a direction that the necessity of CTG monitoring be explained to the mother and encouragement to persevere with the CTG should be encouraged in all cases where the mother requests the CTG be removed;

13. All hospital policies addressing monitoring should include a plain language direction that draws attention to abnormal FHR patterns as outlined by RANZCOG, irrespective of whether a Doppler or CTG is being used.  The policies should also contain a plain language direction for specialists to be consulted if there is evidence of an abnormal FHR pattern or indeed any concern about whether the trace shows an abnormal FHR pattern;

14. Regular ongoing professional development for all medical professionals dealing with patients on communication in stressful situations should be required by their respective professional bodies to maintain registrations and licensing;

15. Hospitals should assess current medical forms and similar documents that are to be maintained by midwives and ensure that they are user friendly in both number and readability.       

Facilities that allow a midwife to have the medical forms as close as possible to the patient should be ensured so that they can be readily maintained.  Forms should be consolidated as far as possible to obviate the need to complete multiple records of the same information.

The keeping of a separate record of a patient to be later transferred to the official medical records by all medical staff should be avoided.  If however the need arises to do this, all separate notes written by medical staff should be considered a part of the medical records of the patient and included in the patient’s medical file.  The separate record should not leave the hospital or similar medical facility.

This is a matter of privacy, a patient’s right to be able to access all of their records as well as other bodies, including a Coroner’s Court, having full access to all of a person’s medical records where appropriate.  Removal of any notes made on a patient should be seen as both unethical (whether intentional or unintentional) and illegal;

16. It should be reinforced to patients and staff that a birth plan is a guide only and does not dictate the only method of delivery; nor does it mean that the patient is not open to assisted labour if the need arises, without suitable explanation.  Expecting mothers need to be told that birth plans are important, but are only a guide and that all concerned need to be flexible and prepared to change the birth plan swiftly and do whatever is required to deliver the baby safely;

17. Hospitals should ensure that they implement the “Open Disclosure National Standard”;

18. Hospitals should ensure that they implement a plain language policy regarding amendments to medical files and records. 

 E.g. That only health practitioners alter records and that when they are altered the amendments are clearly shown along with the date and time that they were made and the identity of the person making the amendments;

19. Hospitals should ensure that they have a system in place that requires approval from a senior hospital administrator or an appropriately appointed person before anyone can access medical files, once stored, and that any person accessing medical records cannot do so without a record being taken as to the date, time and identification of the person taking the records.

Many hospitals, both state and private, may already adhere to Coroner Hutton’s recommendations.  However his findings are a sharp reminder to all hospitals to check their antenatal services and procedures, record keeping and storage procedures, birth plan protocols, foetal monitoring during labour protocols and the competency of their health practitioners and their knowledge of hospital policies and procedures.

Hospitals and health practitioners should also be alive to the fact that under Section 141 of the Health Practitioner Regulation  National Law Act 2009 (“HPRNLA”) they are subject to a mandatory duty to report “notifiable conduct” as soon as they become aware of it in the normal course of their duties.  The Act lists at Section 140 what constitutes notifiable conduct. The list includes sexual misconduct, practising under the influence of drugs or alcohol, practising while impaired and where the practitioner has “placed the public at risk of harm because the practitioner has practised the profession in a way that constitutes a significant departure from accepted professional standards.” It is the last of these that is relevant in cases such as that of Samara Hoy.[1]

In addition to the HPRNLA which came into force less than 2 months after Baby Samara’s death there is the AMA Code of Ethics 2004 which sates at clause 2.1(c) that colleagues should report unethical or unprofessional conduct to the appropriate peer review body.

Section 144 of the HPRNLA provides for “voluntary notification” for less severe misdemeanours and contraventions.  It may seem unpalatable to many health practitioners to “dob in” their colleagues and in some cases employees but this might be preferable to the public glare and criticism for doing nothing and “looking after their own” particularly if there is a subsequent adverse event that could have been avoided if action had been taken earlier against the offending health practitioner.

Charles Hartley

Solicitor & Accredited Mediator
Bruce Thomas Lawyers

Phone:      (07) 3211 2233                   (02) 9089 8608
Facsimile: (07) 3211 2133                    (02) 9089 8738
Email: ch@btlawyers.com.au

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