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Full steam ahead for river cruise disappointment damages

The New South Wales Court of Appeal yesterday delivered the final test case ruling relating to the 2014 Rhine River cruise disruption and disappointment damages class action case: Scenic Tours Pty Ltd v Moore [2023] NSWCA 74 (20 April 2023) (Ward P, Kirk JA and Griffiths AJA). This was the fifth major decision in this […] from Carter Capner Law https://cartercapner.com.au/blog/full-steam-ahead-for-river-cruise-disappointment-damages/

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Virus outbreak stokes cruise disappointment & class action stumble

Damages for disappointment can be recovered when a consumer acquires services that are intended to provide pleasure, relaxation or enjoyment but don’t live up to their promise. Substandard travel and holiday services – and particularly cruise disappointment – are especially susceptible to such claims. The consequential losses of a travel service provider’s failure to deliver […] from Carter Capner Law https://cartercapner.com.au/blog/virus-outbreak-stokes-cruise-disappointment/

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Brain injured motor mechanic awarded $1 mil for farm bike accident

A 60-yr-old motor mechanic who was thrown over the handlebars of a motorcycle he had just serviced and was test riding on a dirt road, has been awarded more than $1 million for a serious brain injury that resulted from the farm bike accident. Adrian Antaw conducted the repairs for friend Edward Valks who occupied […] from Carter Capner Law https://cartercapner.com.au/blog/brain-injured-motor-mechanic-awarded-1-mil-for-farm-bike-accident/

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Venue liability for influencer bar assault stayed pending appeal

A patron’s injury compensation win against a glamour beachside restaurant venue and its security guard provider for not intervening to prevent a bar assault by an unruly guest has been stayed pending an appeal.

Instagram and OnlyFans influencer Clinton Chadwick arrived with two friends at the Bucket List Bondi Beach Club around 6pm on the last Friday before Christmas in 2017.

On entry to the ritzy premises a very inebriated and behaving badly Stephen Martin verbally antagonised the trio with comments about Chadwick’s appearance and the tattoos his group had on display.

Chadwick gave Martin a push. A little later he attempted to punch him only to provoke a response in which Martin struck him with a bar stool unconscious to the ground and laid further blows on his head while he was still down for the count.

The influencer sought compensation injury for his injuries and to his “brand” from the establishment and the security organisation alleging they should have taken precautions to ensure that Martin and his rowdy friends were controlled or evicted from the premises before the assault took place.

They denied liability on the basis that such violence was not foreseeable in their genteel family-oriented restaurant.

Justice Michael Elkaim agreed that the premises held a restaurant licence but observed from CCTV footage that food was only occasionally being served and there was “scant evidence of eating”.

The risks of violence associated with alcohol use were – the judge observed – well-known and licensees’ duties include the minimisation of harm associated with misuse and abuse of liquor.

The higher level of duty owed to patrons arose out of the permission they held to sell liquor upon their premises.

Violent outbursts were clearly foreseeable said the Zambian born judge, given “it was full of young people drinking alcohol [and] was far from a placid restaurant environment”.

It followed that the “not insignificant” risk of harm was had to be mitigated by monitoring alcohol consumption and maintaining “the peacefulness of the premises”.

Mere engagement of security guards was of itself an acknowledgement by the venue of that risk and the need to take precautions.

Martin – who was not sued – swore that before arriving at the Beach Club he and his friends had in fact been evicted from the German pub across the road.

“On a scale of one to ten with one being sober and ten being as drunk as I ever have been in my life,” Martin – who was called by Chadwick to give evidence in his support – explained from the witness box. “At the time of the incident I was very drunk, maybe an eight or nine, too drunk to be there really”.

Not to be outdone, the defendants contended that no matter how intoxicated Mr Martin and his group might have been, they were never on notice that he displayed any propensity towards violence.

It emerged though, that a manager had asked security to “keep an eye on those guys as they had already said a few things to other people” and their boisterousness had been noticed by others in authority.

In the court’s view those factors were sufficient evidence of behaviour that should have led the defendants’ staff to take action.

The judge had no doubt that their behaviour was “precisely the type” of disruptive and aggressive conduct that should have prompted their control, restraint or eviction.

Jason Fullerton – an expert in crowd control at licensed premises – gave testimony that the level of security staffing was inadequate in that there were too few and those that were there were not properly qualified.

At the time of the incident, there was no licensed security guard in a position to intervene.

The court concluded that the venue and the security company should be equally liable for Chadwick’s injuries: “the second defendant provided inadequately qualified staff; the first defendant permitted the centre to function with inadequate security”.

Justice Elkaim also rejected the contention that because Chadwick had made the first physical contact, he was the instigator of the incident.

Both defendants asserted that the influencer had quickly returned to full economic capacity and that he was consciously exaggerating the psychological impairment he claimed.

Their neuropsychology expert Professor Richard Mattick – who administered the controversial MMPI and another so-called malingering test and whose views were preferred by the court over those of his colleague Donald Rowe – concluded he sustained no traumatic brain injury.

Orthopaedists Matthew Giblin and Professor Michael Shatwell agreed that Chadwick’s physical injuries had been transient.

Chadwick’s claim was thus primarily confined by the court to the psychological impact on his self-confidence which he contended was critical to his income earning capacity as an Instagram influencer.

“I was in the prime of my life, physically and mentally,” he swore from the witness box. “I had the energy of an Energizer Bunny and worked long hours each week to build up my business, attended the gym, and had many friends that I socialised with when I had time to do so”.

The business he referred to was Rig Fit – an activewear supply business – in which he engaged influencers (including himself) to market its products.

His Honour noted he was “certainly a very competent influencer not only influencing the sale of his activewear products, but also to influencing various persons to invest”.

The defendants argued Chadwick’s  claim for loss of earning capacity was fanciful in that his business “was probably not viable”; leading up to the assault he was consuming up to 20 ‘lines’ of cocaine a week; he was dealing drugs; and he had police issues waiting to be addressed.

They produced evidence that he had earned around USD $70,000 over a two-year period since the assault by posting images of himself on OnlyFans.

The court accepted his involvement in social media was only marginally diminished by the assault and that he had participated in a bodybuilding contest. He was also making plans to visit Mykonos in the near future.

Justice Ekaim did not consider Chadwick to be overtly dishonest but thought him to be “somewhat deluded by his own image, his capacity to be a successful businessman and his perception of what his future might have been but for the injury”.

He agreed he suffered a very traumatic experience resulting in a post-traumatic stress disorder that is gradually resolving, a minor neck injury and some permanent scarring.

In addition though there had been a psychological impact on his confidence and self-esteem that affected his perception of his image that in turn damaged his “brand”.

The judge assessed his non-economic loss at 25% of a most extreme case, equating to $46,000 for general damages. He allowed a past loss of income at half average weekly net earnings of $567.50 for of 272 weeks making a total of $154,000. A “very small buffer” of $25,000 was allowed for loss of future earning capacity to make up a total assessment of $251,000.

This though was reduced for the extent to which Chadwick was himself responsible for being caught up in the event – i.e. contributory negligence – by 20% to result in a net award of just over $200,000.

On 20 March, the order for payment of damages was stayed pending an appeal that the defendants have indicated they intend to file promptly.

Chadwick v Bondi Beach Food Pty Ltd; Bondi Beach Food Pty Ltd v Crossguard Group Pty Ltd [2023] NSWSC 197 Elkaim AJ, 9 March 2023 Read case

from Carter Capner Law https://cartercapner.com.au/blog/venue-liability-for-influencer-bar-assault-stayed-pending-appeal/

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Intoxicated reveller: does criminal conduct bar damages?

An intoxicated reveller who threw herself onto the bonnet of a car has defeated a third-party insurers’ arguments that such criminal conduct bars her from compensation for injuries received when she was thrown off as the vehicle accelerated away.

Taylor Draper was among many under 25s congregating in Jack Evans Park, Coolangatta around 1am on Easter Saturday morning in April 2017.

Her group had walked there after drinking sessions at the Coolangatta and the Sands Hotels where some scuffles had broken out.

Further aggressive outbursts at the park prompted 16-yr-old Rebecca Ribbons – among a different group of youths accused by others of stealing a handbag – to call a friend to collect them ASAP.

When Brooke Catlin arrived in her mother’s Holden Astra about 10 minutes later, Rebecca and two others raced to the car to get in.

Brooke began to drive slowly away but suddenly stopped as Taylor “bolted at full speed” from the park and then jumped headfirst onto the Astra’s bonnet, cracking its windscreen.

She turned herself around and sat in the centre of the bonnet of the stationery car with her back against the windscreen and her legs out in front.

As others advanced from the park towards her, Brooke accelerated westwards along (the NSW side of) Boundary Street.

She slowed to turn right (into Queensland) at a roundabout to ascend Hill Street which – she said – she believed was far enough away from her antagonists to stop and get the girl off the car before driving home.

As the car slowed, Taylor attempted to dismount by straightening her legs out over the driver’s side towards the bitumen.

She slid as the car began its turn and fell backwards landing on her lower back and striking the back of her head heavily on the roadway.

There were three disinterested eye-witnesses to the event. One of those – a window repairer on the eighth-floor balcony of the Hotel Komune – captured mobile phone vision of the Astra’s approach to the intersection and turn into Hill Street.

“The other people in my vehicle were screaming in fear for me to ‘Go, go, go,” Brooke explained when Taylor’s liability-only injury compensation claim came before the NSW District Court. “I tried to drive away from what I thought was real danger, but I was conscious that this girl was hanging on, on the front of the bonnet”.

Acting Judge Jason Curtis rejected Brooke’s “agony of the moment” defence concluding that at 50 m distant from the aggressive park dwellers – and still 20 m short of the intersection – she was in a sufficiently “un-threatening situation with ample opportunity to stop the car momentarily” to allow Taylor to alight.

He was fortified in this conclusion by the transcript of her 000 call being “inconsistent with escaping a situation of grave danger.”

Buy did Taylor’s unlawful conduct stand in the way of compensation recovery?

Reckless damage to property and assault constituted offences – noted the judge – but sitting on the bonnet of a stationary car was not illegal and indeed was not unreasonable given the occupants suspected of having stolen a handbag.

There was thus no reason at common law why she should be prevented from recovering compensation.

Neither could there be any Civil Liability Act protection against liability for the injured party’s criminal conduct given the unique NSW antidote to immunity that applies when the defendant’s conduct also constitutes an offence.

By “driving between 11pm and 5am with more than one passenger younger than 25 years of age,” Brooke had been in breach of the terms of her provisional drivers’ licence.

Brooke’s third-party insurer appealed against these findings.

In delivering the lead judgment of the court, Justice Christine Adamson upheld all of the conclusions of the lower court.

She agreed that the occupants of the Astra had over-stated the danger to which they remained exposed after moving off with Taylor still sitting on the car’s bonnet.

Taylor was after all young female who was unrestrained on the bonnet and without any kind of weapon, much less one that could cause any harm to the occupants of the vehicle. Rather, she was put “in grave danger of harm from the time when the vehicle started to move forward” and faced “the near certainty” of serious injury or death when thrown off.

The insurer also argued that the extent of Taylor’s contributory negligence should be upgraded from 25% to 80% inter alia because the Astra “was obviously about to drive off” at the time the young woman had jumped on to the bonnet.

The appeal judges concluded that the primary judge had properly rejected that submission that and left the contributory negligence finding undisturbed at 25%.

A further trial in relation to damages will be required unless the parties can agree on a sum that appropriately represents the value of Taylor’s injuries and losses.

Catlin v Draper [2023] NSWCA 49 Meagher JA Mitchelmore JA  Adamson JA, 24 March 2023 Read case

from Carter Capner Law https://cartercapner.com.au/blog/intoxicated-reveller-does-criminal-conduct-bar-damages/

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Pedestrian hit on sidewalk, injury exaggeration sinks claim

A pedestrian hit by car on a Broadbeach sidewalk after a violent two car collision and then had a wall that the car also hit fall on top of her, has been ordered to pay a substantial part of the legal costs of the at-fault driver’s insurer for having exaggerated her injuries and the severity of her symptoms.

Meah Baldock-Davis was walking towards Pacific Fair when the innocent vehicle in a two-car collision flew from the road beside her and struck her from behind.

She fell to the ground only to have a wall bordering the pavement that the car had also struck, fall on top of her.

After being ambulanced to the Gold Coast University Hospital for surgery to her left foot and neurological assessment of her back, she was discharged four days later.

The neurology department discharged her from outpatient treatment three weeks after the accident with an assessment that she was symptom-free.

Fast forward from July 2019 to December 2022 when her injury compensation claim against the at fault driver for spinal injuries, fractured ribs and the foot injury came before Justice Sean Cooper in the Supreme Court in Brisbane.

His Honour accepted the L3 and L4 fractures recorded by the hospital – in the absence of evidence of any other trauma to her spine which might otherwise explain their existence – were caused by the accident.

There remained some disagreement between orthopaedist John Radovanovic called for the plaintiff and his colleague David Pincus as to the extent of other injuries at the C7/T1 level.

The judge found though that contest was unnecessary to decide given other findings that any case the plaintiff could make regarding a serious ongoing impairment, was doomed to fail.

Her symptom-free discharge from a neurology department and a similar clean bill of health from her physiotherapist after dozens of treatments up to December 2019 were completely at odds with the exaggerated accounts of ongoing pain and restricted activity she had given to Radovanovic, neurologist Scott Campbell and Occupational Therapist Cho-Lee Ng.

Payroll evidence showed that she had increased her work hours the accident whereas her accounts to the experts were that she had reduced her work hours post-accident.

All three experts – when confronted such records and social media vision – agreed they revealed an entirely different situation to what the claimant had described to them.

The video footage showed her running, kicking and heading the ball while playing in 18 Division I soccer games during 2021 and wrestling with her brother in a jumping castle

before sliding down a slide on her back and then landing heavily.

The CTP insurer tendered a video compilation of those and other activities taken from the plaintiffs Instagram account.

Baldock-Davis answered these criticisms by saying that she engaged in such activities for the social value and paid the price of severe pain after each event.

The court was not impressed.

“I have significant reservations about the reliability of Ms Baldock-Davis’ evidence as to the nature and severity of her symptoms and their impact on her capacity to undertake activities of daily living,” Justice Cooper observed.

“I have formed the view that she has, whether consciously or not, overstated those effects. I do not accept that Ms Baldock-Davis’ accident injuries restricted her in the manner and to the extent she stated in her evidence”.

He assessed damages at $21,510.00 and nothing for future loss of earning capacity. The total award at just $40,635.44 was lower the amount that had been offered by the resulting in an order that she must pay its costs on the standard basis for the proceedings from March 2021.

 Baldock–Davis v Popham & Anor [2023] QSC 24 Cooper J, 23 February 2023

from Carter Capner Law https://cartercapner.com.au/blog/pedestrian-hit-on-sidewalk-injury-exaggeration-sinks-claim/

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Safety measures messages mixed: thumb injury costs firm $727k

The idiosyncrasies of the concrete industry have been laid bare in the case of a truck driver who sustained an on-the-job thumb injury when manipulating defective equipment in the course of delivering wet product to a construction site.

Karen Reddock – a New Zealander experienced in machinery operation and driving concrete delivery trucks – was inducted by both ST & T and Boral in May 2018 to drive the former’s cement trucks for delivery of Boral’s cement.

The contractual arrangement between those two companies allowed Boral’s batching plant manager to give directions to ST & T’s employees for delivery jobs and to stand them down if it considered any truck to be unsafe.

ST & T was responsible for all truck maintenance except in respect of agitators on those in its fleet that had been supplied and installed by Boral.

Reddock’s first 4 m load on the day of her injury in July 2018 was collected from Boral’s Browns Plains plant at about 6:15 am.

On arrival at the Mansfield job she noticed the delivery chute at the rear of her truck was stiff and hard to rotate into place to aim the pour into variously positioned wheelbarrows.

She reported the defect on her return to Boral’s batching plant manager Simon Dignan who – believing he knew what the problem to be – came down from his office to retrieve a grease gun and apply lubricant through the grease nipples on the sleeve that housed the arm to which the delivery chute was attached.

The extent to which this relieved the problem became a matter of controversy.

Dignan pushed the chute back into its transit position and told Reddock he needed her to do another job because they had no other trucks available.

She departed shortly after with a 6 m load for a Brisbane City Council job in Juliette Street, Annerley.

At that jobsite, BCC workers opened the chute for the pour with Reddock hydraulically controlling the height of the discharge point of the chute by a lever in the cab of the truck.

At the end of the pour, she attempted to rotate the chute back into its transit position. After several unsuccessful pushes against the jammed device she felt a slight tweak or twinge in her hand but thought nothing of it.

The chute was eventually returned into place by a site worker, allowing Reddock to leave the job just after 10 am.

The pain in her hand became more noticeable in the course of her third job of the day, a delivery to a site in Chapel Hill where she relied on workers at the site to manipulate the stiffened delivery slide.

It was on return from there that she sought out Dignan to prepare an incident report in relation to the Juliette Street job only to be told she was needed to drop another load.

Not sure whether she should follow that direction, Reddock called her boss Wade Schrodter to report the truck problem and that she had “bugged her hand”.

Schrodter insisted the truck be returned their Wakerley yard for repair. He called Dignan to explain and drove to the plant to collect Reddock for medical treatment.

The cause of the chute’s stiffness was identified the following day at ST & T’s workshop as the delamination of the linings on both semicircular brake shoes that surrounded its swivel arm. Those linings were known to have a limited service life but were only replaced upon failure because they could not be inspected without the brake being fully dismantled.

The worker’s injury compensation claim – against both ST &T and Boral – came before Justice David Jackson in the Supreme Court at Brisbane. Reddock contended that ST & T’s safety instruction ought to have been that she should stop work immediately in the event of encountering any unsafe situation.

To escape liability, the company relied on an induction document that clearly spelt out machinery deficiencies had to be immediately reported to it and that “if you feel something is unsafe DO NOT PROCEED”.

While the court accepted Schrodter had explained such things to Reddock, it preferred the worker’s evidence that no such induction document was provided to her.

ST & T’s failure to give a “stop work” instruction did not though – in the judge’s view – constitute a breach of duty as such a stringent requirement was impractical.

Where the truck company came unstuck was the “mixed message” created by a further induction warning – also included on the induction document – that “getting along” with the batching plant manager “makes your working environment much more enjoyable”.

The worker could therefore not have been faulted – Justice Jackson concluded – for following Dignan’s direction to do the Juliette Street job notwithstanding the cement delivery chute on her truck was defective.

His Honour ruled that ST & T was negligent for its “failure to give a clear instruction that the plaintiff was to contact it before proceeding further” in the case of safety-suspect equipment.

Boral was likewise at fault for Dignan having sent the worker on another job without having effectively remedied the defective chute mechanism.

Liability for her hand injury and subsequent psychological decompensation was apportioned equally between the two companies.

When it came to damages Justice Jackson noted that while those payable by the employer were limited by the WCRA to what is allowed under the Civil Liability Act including the ISV scale, those payable by Boral were to be assessed under the common law.

The only material difference that arose was care damages being included in the common law assessment but excluded from the WCRA formulation.

General damages calculated by reference to ISV requirements came in – after reducing an ISV of 30 to 22 due to the chance of the worker independently having developed de Quervain’s tenosynovitis and/or a mental disorder – to yield $43,250.

At common law general damages were assessed at $65,000 – the sum submitted by Boral to be appropriate – but discounted for the same factors by 30% to come in at $45,500.

Justice Jackson gave no reasons for settling on $65,000. He paid no attention to any of the four decided cases to which he was referred. The case on which Boral relied was a 2013 where the plaintiff argued the trial judge’s assessment was manifestly inadequate but where the appeal judges found – by looking back a further 10 years – the amount allowed was at the lower end of the range but not erroneous.

It is notorious that the ISV scale artificially deflates general damages awards. How then can it be that general damages assessed at common law is for almost identical with amount assessed under the scale?

Given the dearth of recent common law assessments in this state, one wonders whether awards in other Australian jurisdictions should be considered by the court for comparison.

Reddock’s damages were awarded at $633k as against ST & T and $727k against Boral.

Reddock v ST&T Pty Ltd & Anor (No 2) [2023] QSC 21 Jackson J, 13 January 2023

from Carter Capner Law https://cartercapner.com.au/blog/safety-measures-messages-mixed-workers-thumb-injury-costs-727k/

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Ambulance trolley toppled by hole, $300k damages for public park fall

Compensation claims for injuries resulting from a public park fall because of uneven ground usually go nowhere.

If though the “uneven” ground is in fact a hole 5 cm – 6 cm deep concealed by the lawn in which it is situated, such a claim becomes arguable.

Consider the case of Barbara Hodges – when joining her daughter for a walk-in Sheriff Park in Townsville – her left foot stepped into what she described as a hole causing her to fall and suffer a spiral fracture of the left tibia, fibula and malleolus.

She was ambulanced from the scene to Townsville University Hospital for open reduction surgery that required internal metal fixation to retain the limb in place.

Her inevitable injury compensation claim against the Townsville City Council contended that it ought to have discovered and remove the hazard and that its failure to do so rendered it liable her in damages.

Barbara had sworn by declaration that the hazard was 15 cm – 20 cm deep. Her account under cross examination when the matter came before Judge John Coker in Townsville’s District Court conceded that it may have been shallower, but she could give no accurate estimation of its depth

This inconsistency was seized on by the council’s legal representatives who argued that the height differential was a mere “indentation” with a maximum height differential of 20 mm.

The council called numerous landscaping staff in support of that argument to inform the court they had not observed a hole that met Barbara’s description during the week of or following her accident.

Judge Coker however did not take this as evidence that the hole had not been present. He concluded from it that their inspections had been inadequate to detect its presence.

Critical to the ultimate outcome of the case were the events associated with her ambulance treatment at the scene. Ambulance officer Jodie Byron attested to the fact that the trolley to which Barbara had been strapped for removal to the ambulance began to roll over when one of its wheels descended into a hole.

She recorded this in her report and even took a photograph of her foot inside the hole to depict its depth.

A senior ambulance officer – called as part of the defendant’s case – subsequently came to the scene as part of an investigation of the mishap and found the hazard which office Byron had described as having the diameter of a dinner plate and with a depth of 5 cm – 6 cm deep.

He in fact requested a nearby council maintenance crew to fill the whole with a “shovelful of crusher dust” from the back of their truck to remove the hazard, which they proceeded to do.

His Honour wasn’t perturbed by the plaintiff’s differing account of the hole’s depth. He was satisfied by reason of the tipping of the ambulance trolley; officer Byron’s concern about the incident; and the concern of her superiors that the depression – however deep it was – constituted a hazard to which the council’s duty extended to make the space as safe for users as reasonable care could make it.

Neither was the court concerned as to how the hole came into existence.

More to the point was that it was concealed as the grass growing from inside had been cut to the same level as surrounding lawn and that it was in close proximity to the only off-street car park making it a high traffic area for members of the public.

The the height of the grass growing from the base of the depression was a sufficient indication that it had been in existence for long enough to allow the council – had its inspections been inadequate – to have discovered it.

“It was a hole, not a depression or unevenness in that it caused a risk apparent as a result of the plaintiff’s injuries but most obviously as a result of the toppling of the ambulance stretcher”.

Judge Coker awarded Barbara $302,000 in damages such sum having been agreed between the parties as the appropriate compensation figure for the losses sustained.

Hodges v Townsville City Council [2022] QDC 272 Goker J, 7 December 2022

from Carter Capner Law https://cartercapner.com.au/blog/ambulance-trolley-toppled-by-hole-300k-damages-for-public-park-fall/

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Laparoscopic error: trivial general damages for gruesome surgical outcome

The horrifying consequences of a laparoscopic error causing a puncture to a female patient’s colon have been recounted in detail to a court only to yield trivial general damages.

On referral to the hospital by a local GP, Cara Chapman – whose complex gynaecological history involved multiple surgeries – consulted specialist Dirk Ludwig at Hervey Bay who recommended a hysterectomy.

Patient With Colostomy After Cancer Surgery, Closeup

Within hours of that procedure in mid-December 2015 the patient developed agonising abdominal pain.

An emergency laparotomy conducted by surgeon Neil Harding-Roberts revealed an 8 mm perforation to her rectosigmoid junction that likely occurred as a result of the gynaecologist mistakenly resecting a portion of the sigmoid colon leaving an opening in her bowel wall.

With the puncture repaired, what was left of her sigmoid colon was removed and part of the remaining colon brought to the surface of her abdomen to form a stoma to which a colostomy bag was fitted.

Ms Chapman went into shock and depression when she saw the outcome of the emergency procedure. She struggled to acknowledge that she had the stoma and endured a difficult two months thereafter with multiple re-presentations for abdominal, psychological and neurological treatment.

The stoma reversal by surgeon Polbert Diaz eleven weeks later left her relieved at being rid of the colostomy bag but with painful pulling abdominal sensations that hindered her range of movement.

Her anxiety and depression caused fatigue notwithstanding treatment with antidepressants.

Compensation proceedings filed in November 2018 came before Judge Jennifer Rosengren in Brisbane’s District Court in August 2022.

Liability was admitted for the laparoscopic error by the hospital in recognition that the surgeon had likely mistaken the sigmoid junction for a residual portion of the left fallopian tube that he was required to remove.

Despite the gravity of the injury, the two additional surgeries she was required to undergo, the “horrendous” stoma and colostomy bag, permanent abdominal scarring and the resulting depression, fatigue and anxiety general damages topped out at just $22,000.

That figure was arrived at from an ISV of 10 for the bowel injury uplifted to 13 to reflect the bowel injury’s “adverse impact”, the scarring and her adjustment disorder that of itself rated an ISV of 5.

Although an uplift from 10 by more than 25% is permissible with “detailed written reasons”, a higher number was not sought.

This is understandable given the ISV system is so one-sided that the additional sum achieved from a total ISV of 14 or 15 is in any event inconsequential and not deserving of the added effort and expense required to achieve it.

Past loss of income of $18,000 and a “global” award for future income losses at $43,000 combined with past and future care awards totalling $87,000 to bring the total damages awarded to $202,000.

But that was not before the defendant hospital launched an attack on the plaintiff’s credibility claiming that the majority of her post surgery symptoms were the result of severe Obstructive Sleep Apnoea with which she was diagnosed in September 2020.

Her honour agreed the OSA to account when considering vicissitudes of life but concluded that the fatigue Ms Chapman experienced was depression related and that her OSA was being successfully treated with CPAP therapy.

“The discount it would attract would not be significant,” she observed.

The hospital also contended that expenses paid through her private health insurance should not be included in her claim without evidence that she was required to reimburse the health fund from the proceeds of the judgement.

Her Honour rejected that claim noting that it was “not contingent upon the existence of an obligation to repay.”

“A tortfeasor should indemnify the injured person for the loss rather than enjoy a windfall gain by shifting the burden of compensation” to the health fund.

Considering the paltry general damages in cases such as this – when in New South Wales for the same injury the sum would be well in excess of $100,000 – the time has come for the Queensland ISV methodology to be reformed. It is clearly no longer fit for purpose.

Chapman v Wide Bay Hospital and Health Service[2022] QDC 271 Rosengren J, 2 December 2022

from Carter Capner Law https://cartercapner.com.au/blog/laparoscopic-error-trivial-general-damages-for-gruesome-outcome/

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Seaworld tragedy must be a catalyst for law change

Claims for injury compensation arising out of the SeaWorld helicopter tragedy face two major legal hurdles in recovering compensation.

Firstly, there is no requirement for commercial operators to insure against claims for psychological injury by non-passengers. That means that any good Samaritan or first responder who helped retrieve bodies at the wreckage site cannot claim under the operator’s mandatory insurance policy for any mental health deficit they may have suffered from the carnage they witnessed. They will be required to take the risk of suing the operator itself – which may prove futile if it is insolvent – or some other responsible party.

This situation requires immediate amendment to federal legislation[1] by specifying that the insurance policy provided to operators not only insures passengers, but also extends to injuries to the mental health of good Samaritans and first responders on the ground.

Secondly, the operator and its insurer can escape all liability even to mutilated passengers for their injuries under Queensland’s Civil Liability Act that came into force in 2002 by arguing that helicopter joy flights are a dangerous recreational activity.

If insurance companies successfully argue that light aircraft travel is inherently dangerous – like they have already done in NSW – all injured SeaWorld passengers would lose their right to recover injury compensation.

A recent NSW case involved a light aircraft pilot crashing into a Ferris wheel that had been negligently erected at the end of an airstrip in a dangerous position by the local council for a beach festival on the NSW mid-north coast in October 2011.

Despite the court ruling that the council was by far the most at fault for the accident, the aircraft occupants were denied all compensation because of the insurer’s successful argument that it had immunity because it was dangerous to travel by light aircraft. [2]

The Civil Liability Act came into force in Queensland in 2002, but there has been no ruling here as yet as to whether such travel is considered a dangerous activity.

Aviation insurers always claim liability immunity for claims arising out of private flights and commercial training. The situation in other commercial operations – like Seaworld, charters and airline flights – is a little different.

Ordinarily for those flights, an injured passenger can claim up to $925,000 for their proven and medically verified losses if they are injured as a result of an accident without having to prove who was at fault. This is derived from federal legislation which also carries the requirement for such operators to effect mandatory passenger insurance.

In the last couple of years there has however been some controversy over the extent to which the federal law “picks up” provisions of a state’s Civil Liability Act. This too has not yet been addressed by any Queensland court but insurers have argued in favour of such interpretation on three occasions.

All three cases related to international airline travel. One federal court judge decided in favour of the insurer’s argument [3], while another federal court judge [4] and a Victorian judge [5] have ruled against it.

The SeaWorld circumstances carry a further complication. While carriage-for-reward passengers’ compensation rights are derived from a federal law, they are implemented – in the case of all intra-state travel including for joy flights at SeaWorld – by a State act [6].

Does this boost an insurer’s opportunity to convince a court that the state’s own Civil Liability Act should limit their liability? Can the insurer claim immunity in the case of non-airline operations on “dangerous recreational activity” grounds?

Queensland is a decentralised state with general aviation light aircraft operations being a mainstay for communication and transport in rural and remote areas.

Most Queenslanders who travel in light aircraft around our magnificent state would be surprised to hear that they are disqualified from compensation for any injuries they might unfortunately sustain as a result of the negligence an airport operator, a fuel supplier, an aircraft maintenance organisation, another aircraft, an air traffic controller or a pilot.

The Queensland government should immediately amend s 18 of the Civil Liability Act to clarify that light aircraft travel does not come within the definition of “dangerous recreational activity”. Injured passengers must be spared of this legal jeopardy in navigating a path to recovery from their injuries.

Footnotes

[1] Civil Aviation (Carriers’ Liability) Act 1959 Part IVA.

[2] Arndell BHT Arndell v Old Bar Beach Festival Incorporated; Cox v Mid-Coast Council – [2020] NSWSC 1710 Rothman J, 1 December 2020

[3] Grueff v Virgin Australia Airlines Pty Ltd [2021] FCA 501 Griffiths J, 12 May 2021

[4] Bradshaw v Emirates [2021] FCA 1407 Stewart J, 12 November 2021

[5] Di Falco v Emirates Keogh J, [2018] VSC 472, 24 August 2018

[6] Civil Aviation (Carriers’ Liability) Act 1964 (Qld)

from Carter Capner Law https://cartercapner.com.au/blog/seaworld-tragedy-must-be-a-catalyst-for-law-change/

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Tragic farm worker accident: employer’s fault or that of auger supplier?

In what circumstances can the supplier of machinery that an employer allows to be used in an unsafe manner be made to bear responsibility for the injuries it causes to a worker?

Consider the case of a farm worker accident that traumatically amputated an employee’s lower left leg when it was caught in a grain auger that he was trying to clear.

Jethro Baker was employed as a machine operator and farmhand on the rice growing property owned by Frank, Anna, Stephen and Nicholas Morona near Deniliquin in the Riverina region of New South Wales.

Up to 10 tonnes of harvested rice could be stored in each of four field bins on the farm before it was transferred to trucks for freight to a buyer for processing.

An internal auger is used to transfer the grain from the bin into trucks. The system depends on grain falling to the uncovered end of the auger at the base of the bin so it can carry the grain up a chute and into the back of the waiting transport.

Baker was operating the auger in April 2018 in order to transfer rice to a truck when it became stuck and stopped flowing into the auger.

He climbed through a hatch at the top of the field bin and descended inside to move the grain with his feet. In the process, his left foot went through a gap in a mesh guard at the base of the bin and came into contact with the operating auger.

He sued his employer and Ahrens Group Pty Ltd who designed and built the bins contending the latter should bear 90% responsibility.

Justice Andrew Keogh was assigned to apportion liability in the Supreme Court at Bendigo against a background of the parties having agreed a sum for Baker’s financial loss and general damages arising from the accident.

The 35-yr-old Baker recruited mechanical engineer and veteran occupational health & safety expert Tom Dohrmann who identified that the mesh guard through which Baker’s foot passed was of a recently altered design with a gap above the uncovered auger end and some mesh squares unsupported on one edge.

He referred to the relevant WorkCover NSW Code of Practice that specified “all ancillary plant, such as augers, conveyor drive shafts and pulleys, should be guarded to prevent anyone coming into contact with moving parts of the machinery”.

Australian Standard 4024 for machinery safety was also relevant in that it referred to principles of risk assessment and risk reduction of the foremost of which was “inherently safe design”.

Dohrmann’s view was that the mesh guard was less effective than its earlier iteration and that any “inherently safe design” would have prevented the operator to entering through the field bin hatch unless the auger had been disengaged.

Ahrens engaged Dr Bruce Field a mechanical engineer involved in the design of on-farm equipment. He concluded that the field bin achieved inherently safe design in accordance with the standard, and it was unnecessary for a designer to take further protective measures, such as guarding the auger.

However under cross examination, he accepted the guard did not adequately perform its function.

Various industry documents put before the court clearly indicated a history of and propensity for farm workers to intentionally or accidentally approach operating augers.

Justice Keogh observed that the “risk of harm from coming into contact with an operating auger was notorious”.

He found that the manufacturer must have been aware of those risks and the wisdom of adequately guarding exposed auger blades against unsafe practices adopted by farmworkers.

The weakening of the guard caused by the redesign of the mesh created an increased risk of a worker’s foot coming into contact with the auger and both the Code and the Standard obliged Ahrens to consider reasonably foreseeable misuse of a machine it manufactured.

It was in breach of his duty to take precautions to eliminate or reduce the risk of injury to users of its products.

Morona breached its duty of care to Baker by failing to adopt a system of work that prohibited workers entering the field bin when the auger was operating.

And given it condoned workers entering bins with the auger operating, it should have carefully inspected the mesh guard to ensure it would prevent against a worker’s foot coming into contact with the moving machinery.

The judge decided both Ahrens and the Moronas should have taken their own precautions to mitigate the danger and prevent the accident and that responsibility for Baker’s injuries should be apportioned 40% to the employers and 60% to the manufacturer.

The damages the defendants must pay to Baker is not disclosed in the judgement. Given his age, occupation and other factors, the total is likely to be upwards of $1.5 million.

Baker v AM Morona & F Morona & NM Morona & SM Morona [2022] VSC 660 Keogh J, 1 November 2022

from Carter Capner Law https://cartercapner.com.au/blog/tragic-farm-worker-accident-employers-fault-or-that-of-auger-supplier/

[cartercapner]

Miner defeats suspicious minds in claim for CRPS injury: court awards $1.95 mil

An underground miner who presented with what one specialist described as the most obviously fake condition he had seen in his 40 years of medical practice has won nearly $2 million in damages for the accident it resulted from.

Fosterville Gold Mine 20 km east of Bendigo has extracted over 3.5 million ounces of gold since 2005. It employs more than 800 people including – up until May 2018 – Patrick McGiffin.

Working twelve-hour shifts – seven days on and seven days off – McGiffin’s “nipper” role was to maximise the efficiency of a “jumbo” machine to which he was assigned.

He did this by being on ground to load bolts into one of its two booms attached to the jumbo so its operator could drive them into the several hundred holes they would drill in the wall or the roof of the mine each shift.

To comply with safety protocols, the nipper must stay behind the machine unless he sees the operator move back from the boom control levers and receives visual acknowledgement from him that he may move forward.

In March 2018 an accident occurred after McGiffin moved forward of the machine when he believed its operator had signalled with a nod of his head that he could do so.

At the same time the operator inadvertently bumped a lever that caused a boom to swing towards McGiffin such that the bolt at its extremity struck him on the head and right shoulder.

He was treated at Bendigo Hospital and by his GP before returning to work about a week later on alternative duties until May when he ceased work altogether.

McGiffin’s symptoms of constant severe pain radiating from the right shoulder down to his fingers and a total lack of movement in his shoulder were entirely disproportionate the blow he had received.

When his condition was not improved by an arthroscopic decompression in the latter part of 2018 or by repeated hydrodilation of the shoulder joint, treating orthopaedic surgeon, Brendan Soo suspected he had developed Complex Regional Pain Syndrome.

This diagnosis was confirmed in June 2019 by his colleague Thomas Kossmann who noted McGiffin’s right hand and forearm had a different skin colouration, sweating pattern and hair growth compared to his left arm.

He thereafter saw numerous specialists most of whom noted the differences that Kossman had recorded. Some recorded no such differences and some others also noted the right arm was also hotter to touch and appeared to be swollen.

All such anomalies between one limb on the other are recognised features of a CPRS condition and comprise the elements of the only available diagnostic tool, the Budapest criteria.

When his compensation claim came before Justice Steven Moore in the Victorian Supreme Court the employer finally admitted fault for the accident but denied he had any CRPS condition. It also claimed McGiffin should share some of the fault.

Justice Moore was satisfied having regard to the circumstances that there was no contributory negligence on the part of the mine worker.

He then turned his mind to the unusual condition that beset the worker.

Mr McGiffin’s evidence was that his right shoulder and arm will not move and his right hand is fixed in a clawed grip which he cannot open, something that the employer’s expert seized on as evidence of malingering.

Musculoskeletal physician David Vivian took the view from an initial telehealth consultation that he was “consciously simulating his condition”. In a later phone call with the mine’s lawyer in October 2021 describing the condition as “non-organic” and “factitious”, he suggested “the only way you are going to get him to move his arm is to catch him doing it on surveillance or to manipulate it under anaesthetic”.

He went on to say he had never seen “so obvious a non-organic presentation in his 40 years of medical practice”.

In Justice Moore’s view, the expert opinion that Dr Vivian expressed in all three of his reports was coloured by the suspicion he formed on that initial occasion.

Neither Vivian nor occupational physician Joseph Slesenger supported the CRPS diagnosis with the latter stating that if it had existed, it had fully resolved by the time he examined the patient in May 2021.

Slesenger’s conclusion was fortified by the “absence of wasting around the right shoulder and right upper limb” and a suspicion that he was exaggerating his symptoms and was in fact engaged in heavy work.

Justice Moore was not impressed that both these experts – engaged by the defendant – substantially discounted the history the mine worker had provided and failed to apply the multifactorial Budapest criteria which Dr Vivian described as “not all that good, it is a consensus statement”.

The court preferred the evidence of physician Peter Blombery – with more than 30 years’ experience in treating CRPS patients – who assessed McGiffin as a genuine case albeit “with some exaggerated pain behaviour”.

He explained the lack of wasting in the patient’s forearm as being the result of the arm being held in a fixed, clenched position with a continuous engagement of his muscles.

Both Blombery and musculoskeletal and pain specialist Robert Gassin – also with years of experience dealing with CRPS patients – applied the Budapest criteria and confirmed the condition overwhelmingly met all four required elements of which muscle wasting was not one.

A similar divergence arose between psychiatrist Professor George Mendelson and his colleague Justin Lewis.

Because Mendelson’s report was premised upon McGiffin not having a CRPS injury, his view – that the miner did not have any occupationally limiting psychiatric condition – was rejected and that of Dr Lewis – who diagnosed a major adjustment disorder – was accepted.

Accepting McGiffin’s testimony and that of his fiancé Heidi Tresize as forthright and direct, Justice Moore ruled “the weight of evidence supports a finding that Mr McGiffin no longer has the capacity to perform his former, or any other, employment, and is likely to have no capacity to work into the foreseeable future.”

General damages were assessed at $450k; and past income loss of $295k; future income loss for the 29-yr-old at $1,207k making up a total award of $1,952,618.

McGiffin v Fosterville Gold Mine [2022] VSC 665 Moore J, 4 November 2022

from Carter Capner Law https://cartercapner.com.au/blog/miner-defeats-suspicious-minds-in-claim-for-crps-injury-court-awards-1-95-mil/

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Aggravated damages for rape and sexual abuse rated lower than for wrongful arrest

A Gold Coast man acquitted of having broken into the home of his former wife and violently assaulting her has been ordered to pay her close to one million dollars including aggravated damages, for the December 2013 ordeal and resulting trauma.

Caitlin Gardiner – a 42-year-old insurance consultant – continued to reside in the family home at Royal Pines at Ashmore following her recent separation from husband of 15 years, James Doerr.

Having fallen asleep on the couch in the lounge room she woke to the sound of louvres being removed from a kitchen window.

She screamed as she saw a man in a black balaclava wearing latex gloves standing at the sink in the dimly lit kitchen.

The assailant ran towards her and forced her back onto the couch by sitting on her chest. In a struggle he forced her to lie on her back on the tiled floor and stuffed her mouth with a cloth before taping it closed.

He also placed cloth and tape over her eyes and tied her hands together with white garbage bags  before asking if she preferred to be raped from the front or behind.

She eventually recognised from his mannerisms that the assailant was in fact her husband and called him out.

From that moment he removed the balaclava and began talking to her as if the brutal assault had not occurred.

They sat down together at the dining room table where he demanded that she sack her lawyer before he eventually left the residence at 6:00 am.

After the attack, Ms Gardiner unsuccessfully attempted to resume her work on four occasions. She received benefits under her income protection insurance policy for around 18 months.

Her resulting anxiety made it impossible to maintain the concentration and diligence required of her role especially in relation to meetings with prospective clients.

However by 2016 she was able to return to work in a reduced capacity to look after the insurance affairs of that half of her client list – 350 clients – who had remained on board and who had in the meantime been serviced by a colleague.

Doerr denied the incident had occurred at all and that if it had, he had not been the assailant.

He was charged by police for the break and enter and the assault but acquitted.

Justice Sean Cooper in the Supreme Court in Brisbane accepted Gardner’s evidence that the home invasion and assault had occurred, primarily by reason of the physical injuries that had been recorded by investigating police officers and medical personnel.

He also found Doerr to be the assailant given the presence of his DNA on a remnant of one of the latex gloves he had been wearing that was found at the scene.

His contention was that Ms Gardiner’s psychological condition was a pre-existing longstanding condition, was rejected.

Gardiner was assessed prior to trial by psychiatrist Gary Larder with a PIRS rating of 5% but in 2015 it had been assessed at 17% by his colleague Peter Mulholland.

General damages at just $8,400 were allowed.

Forensic accountant Michael Lee tabulated her past loss of income up to October 2021 at between $250k and $418k. Given the upper range assessment was premised upon an unrealistic picture of pre-incident annual average income, the lower figure was accepted.

Justice Cooper concluded loss of income from November 2021 and for the future should be assessed on a figure for gross reduction in the income of the business less than that adopted by the expert accountant. $404k was allowed.

The cost of Ms Gardiner’ regular psychological support from Katrina Fritzon and further fortnightly sessions over the next two years was also allowed in the award.

Aggravated damages were  awarded having regard to the horrendous events of 2013 and the manner in which Doerr instructed that the trial be conducted – alleging that the assault had been fabricated; subjecting his victim to an overly long repetitious cross examination over more than two days; and including unfounded suggestions of dishonesty concerning her professional qualifications.

“In all of the circumstances, I consider this to be an appropriate case to make an award of aggravated damages as additional compensation where Ms Gardiner’s sense of injury from the assault is justifiably heightened by the manner in which Mr Doerr committed that assault and the manner in which he has defended this claim”.

But the judge was not satisfied that the circumstances warranted the same award of $100k for aggravated damages that was granted to David Bulsey who was illegally dragged from his bed in handcuffs by heavily armed, helmeted and masked police officers on Palm Island in 2004.

Rather, the figure was set at $50k with the court concluding the circumstances were more akin to a child sexual abuse verdict concerning an eight-yr-old child in relation to which that sum was allowed.

A further $50k was awarded for exemplary damages – to mark the court’s disapproval of the outrage that had been committed – especially having regard to the fact that Doerr had escaped punishment in the criminal proceedings.

Total damages were awarded in the sum of $967,000.

Gardiner v Doerr [2022] QSC 188 Cooper J, 11 November 2022

from Carter Capner Law https://cartercapner.com.au/blog/aggravated-damages-for-rape-and-sexual-abuse-rated-lower-than-for-wrongful-arrest/

[cartercapner]

Handling unsafe weights at rapid pace: Aldi pays $160k for disc injury

A supermarket stocker has recovered substantial damages for injuries sustained as a result of being required to perform her role of repetitious handling unsafe weights at a rapid pace.

Lucy Norsgaard’s duties at Aldi’s Brassall store included unloading and stacking of stock on shelves.

Under a direction to break down each load and distribute it around the store in 20 minutes or less, she sustained a ruptured disc in June 2019 from a single incident of lifting and manoeuvring three trays of canned tomatoes – a total weight of 15 kg.

She executed that task – as she had done many times before – by bending at the waist to pick up a three-tray stack each holding 12 tins, with her outstretched hands and then turning her trunk to the left to take two or three steps in that direction to place the load on the designated shelf.

When on this occasion she needed to take a third step, she felt a twinge in her back and spilled the cans to the floor.

She presented to her GP three days later complaining of the recurrent “twinge” which was provisionally diagnosed as “likely disc irritation”.

Ms Norsgaard recovered well on reduced working hours and physiotherapy but following her second session at the gym in September for accident related strengthening exercises, the pain and associated stiffness returned.

WorkCover refused to reopen her statutory compensation claim even though in October an MRI detected disc degeneration at L4/5 level “where a posterior annular tear and mild generalised disc bulge was noted”.

She filed a claim against the supermarket operator in the District Court in Brisbane alleging the task she had been required to perform was unsafe and that she had been inadequately trained in safe handling techniques.

Aldi denied any direction to “run a load” within a 20-minute window and asserted that adequate training had been provided. Further it argued, by lifting the trays three at a time, she had contravened the safety directions it had in fact provided.

The “theoretical” component of Ms Norsgaard’s manual handling training had been conducted by requiring inductees to watch videos on an iPad and then answering questions from store manager Ashleigh Hutchinson on what they had learned.

They were also required to demonstrate safe lifting techniques to him before being signed off as proficient.

Hutchinson swore he initially worked alongside Norsgaard as her “buddy” to run loads while observing her manual handling techniques and to provide additional demonstrations and advice about any errors he observed.

He also monitored her lifting and bending technique on other occasions and at least once early on, immediately walked over to her and pointed out something he saw she had done incorrectly.

Notwithstanding his acceptance of that evidence, Judge Nathan Jarro construed from the absence of some of Norsgaard’s training records that Hutchinson’s sign offs perhaps demonstrated insufficient attention to training details.

Having answered “no comment” to whether or not all safety policies were “slavishly” followed, the judge also gained the impression that Hutchinson did not strictly enforce all manual handling procedures.

On that basis – and because the other employees Aldi had called testified about the training afforded only to them – he thus largely accepted Ms Norsgaard’s account of her induction and what directions she had been given.

Critical were her contentions – ultimately accepted by the court – that there had been no direction to not lift weights above 10 kg or other instruction about the maximum safe weight for an employee to handle.

Likewise her evidence that nobody said anything to her to correct her lifting of three trays at a time.

It also emerged that there was indeed an expectation for staff to “run a load” inside 20 minutes.

Hutchinson agreed that it would have been made known to the employee that the average time to break down and distribute a double-D pallet was around 19 minutes and that he would make known to staff that their performance was “not up to standard” if they could not achieve that output.

Ms Norsgaard swore – and several Aldi employees more less corroborated – that at she often fell short of meeting the time target and that “conversations about my speed started almost immediately upon being employed and continued all the way up to my injury”.

An Aldi “Expectation Document” also recorded the average “19 minutes per standard DD” as a staff expectation.

Despite several other employees stating that the timeframe was not strictly enforced, his honour accepted that she decided to increase the volume of stock she picked up in one lift to meet the target.

The foreseeability and probability of a risk of injury to an employee when manually handling products – including the likely seriousness of such injury – were acknowledged by the employer in its own risk management documentation concerning lifts of 10 kg to 15 kg.

On that basis Judge Jarro had no hesitation that the employer had been in breach of its duty.

“More thorough testing of the initial training in manual handling should have occurred to ensure a proper understanding of what was being taught,” he concluded, “together with clear, explicit instructions given about the maximum weight the new staff member should lift safely by themselves at any one time, including the number of cardboard trays”.

He also found there was no proper system of monitoring how staff performed their roles to avoid unsafe manual handling practices and that one to two trays of product be permitted to be lifted and carried close to their body.

He rejected the Aldi contention that the employee should bear a 100% – or indeed any – contribution for her own negligence.

Expert evidence as to causation and damages produced a major divergence among experts.

Neurologist Don Todman assessed reduced flexion in her lumbar spine of 30 to 40 degrees in each direction to which he ascribed a seven percent whole person impairment wholly attributable to the lifting incident.

Orthopaedist John Tuffley on the other hand assessed a minor musculo-ligamentous strain in her lumbar spine of a 4 – 6 week duration. In his view the posture of her back at the time the cans fell to the floor was within normal physiological limits, and he noted she was able to retrieve them without restriction.

He concluded that the pain that arose over two months after the incident was consistent with a separate lifting of weights injury at the gym that had not left her with any permanent deficit and resulted in a zero impairment rating.

Dr Tuffley’s assessment was however discounted by the judge because it did not take into account that Ms Norsgaard sought medical treatment and physiotherapy between mid-August and prior to attending gym in September 2019, albeit presenting only mild symptoms.

And there was no evidence that the plaintiff lifted anything like 15 kg at the gym or did anything other than “body weight exercises” and stretching.

“To me”, his honour observed “it seems common sense therefore that, consistent with Dr Todman’s opinion, the plaintiff suffered an aggravation of her pre-existing injury rather than a new accident.”

He landed on an ISV of 8 as basis for an award for general damages of $12,530. Past economic of $64k and loss of future earning capacity of $67k made up a total award of $162k.

Norsgaard v Aldi Stores (A Limited Partnership) [2022] QDC 260 Jarro DCJ, 22 November 2022

from Carter Capner Law https://cartercapner.com.au/blog/handling-unsafe-weights-at-rapid-pace-aldi-pays-160k-for-disc-injury/

[cartercapner]

WCQ whipped on compliance ask for NOCD particulars of negligence

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

from Carter Capner Law https://cartercapner.com.au/blog/wcq-whipped-on-compliance-demands-for-nocd-particulars-of-negligence/

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The employer was certainly aware of the risk.

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

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

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

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

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

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

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

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

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

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

Not so said the court.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sutton did have an additional win on indemnity costs.

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

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

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

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