Thinking | 5 July 2016
End of financial year WA insurance update
State of connection - Queensland or Western Australia?
The WA District Court has recently delivered another decision on the vexed ‘state of connection’ jurisdictional question, following on from the Court of Appeal’s recent decision in Ethnic Interpreters and Translators Pty Ltd v Sabri-Matanagh  WASCA 186.
Mr Goldman allegedly sustained severe brain damage after suffering heat stroke while working for Ribshire Pty Ltd (outdoors and in enclosed spaces in high temperatures) at the Christmas Creek Expansion Project in the Pilbara region of WA.
Mr Goldman initially claimed compensation in WA. The claim was rejected in WA and then accepted by WorkCover Qld. However, WorkCover Qld later reversed its position.
Mr Goldman then applied to the WA District Court to determine the dispute. Mr Goldman contended that he had originally applied to work in Qld and had discussed the possibility of working in Qld in the future. He claimed his understanding was he would be employed in WA only temporarily and that he would then have a continuing role with the company, in Qld.
District Court Judge Keen found that Ribshire engaged Mr Goldman on a casual basis only, solely for the work at Christmas Creek, and not on an ongoing basis. His Honour therefore concluded that Mr Goldman ‘usually worked’ for Ribshire in WA.
Judge Keen concluded that there was no ongoing relationship between Mr Goldman and Ribshire, nor was there was any mutual intention that Mr Goldman work in WA on a temporary basis and then work in Qld. His Honour also accepted that, whatever Mr Goldman’s intention may have been, if there was to be further work with Ribshire, a further offer of employment would have been made.
Mr Goldman also claimed that WorkCover Qld had acquiesced to Qld being the correct jurisdiction by its conduct in accepting his claim.
This highlights that disputed subjective facts - such as the intentions of parties regarding work location - can cause protracted and costly jurisdictional disputes. It is critical that employers clearly document intended work locations when engaging workers across multiple jurisdictions.
Goldman v Ribshire Pty Ltd  WADC 155
Strict termination day notice requirement enforced
The District Court has emphasised the need for employers to strictly comply with section 93O of the Workers’ Compensation and Injury Management Act 1981 (WA) (Act) in giving workers notice of their termination day.
On 12 March 2014, Ms Reale lodged an election at WorkCover to pursue common law damages and then commenced proceedings against her employer, Wesfarmers Kleenheat Gas Pty Ltd (Kleenheat).
Kleenheat applied to have the proceedings dismissed on jurisdictional grounds. The issue was whether WorkCover had the power to extend the ‘termination day’ - effectively, a limitation period for lodging an election. WorkCover granted the extension on the basis that the notice had not been provided to Ms Reale within the strict 14 day ‘window’ prescribed by the Act.
The Court firstly identified the initial termination day, which requires as a starting point ascertaining the date on which a ‘claim for compensation by way of weekly payments’ is made.
When lodging her workers’ compensation claim, Ms Reale was certified fit for restricted work, which the Court found may indicate a partial incapacity but was not evidence of an entitlement to weekly payments. The Court noted the distinction between a worker lodging a claim for an injury and making a claim for weekly payments.
However, at the same time as lodging her claim, Ms Reale also completed a sick/annual leave authority in which she requested to be paid leave entitlements while she awaited a decision on liability. This persuaded the Court that, when lodging her claim form, Ms Reale was claiming weekly payments.
The Court accepted that section 93O had not been complied with as notice of her termination day had been improperly provided about three weeks before the start of the 14 day ‘window’ to provide notice. As such, the Court held that WorkCover had the power to extend the termination day and dismissed Kleenheat’s application.
This decision highlights the importance of strictly complying with the 14 day ‘window’ in giving workers notice of their termination day - otherwise, it may be extended. Given the complexities associated with identifying the termination day, early attempts to clearly identify and agree it if possible, should be made.
Reale v Wesfarmers Kleenheat Gas Pty Ltd  WADC 5
Casual work found to be concurrent employment
The District Court has determined that intermittent casual employment may be deemed ‘concurrent employment’ when assessing weekly payments under the Workers’ Compensation and Injury Management Act 1981 (WA) (Act).
Ms Huntley was employed by Intellilearn Pty Ltd as an education consultant. For a year before her injury, she also worked from time to time as an agency nurse for Healthcare Australia (HA). She contended that her earnings with HA should be included in her rate of weekly payments.
Ms Huntley did not work for HA on a set roster but rather on a casual basis and her last shift was the day before her injury. She was also rostered for further shifts after the date of her injury. The arbitrator held at first instance that Ms Huntley was not in ‘employment’ with HA on the day of her injury and therefore did not take her earnings with HA into account when calculating weekly payments.
On appeal, District Court Judge Stavrianou held that the ordinary meaning of ‘employment’ included casual work.
Ms Huntley was able to prove that she was incapacitated for her pre-injury work and from earning wages from both employers. Judge Stavrianou upheld the appeal and found that Ms Huntley was employed by both Intellilearn and HA at the time of her injury.
This decision increases the scope for workers to include casual employment earnings in the rate of weekly payments. Questions will no doubt arise in future cases as to how consistent the casual work needs to be in order to be included.
Huntley v Intellilearn Pty Ltd  WADC 32
Arbitration appeals: strictly no extension of time
Another District Court appeal decision has reaffirmed that there is no power to extend the time to appeal an arbitrator’s decision under the Workers’ Compensation and Injury Management Act 1981 (WA) (Act).
Section 247 of the Act provides that a party may appeal to the District Court within 28 days after the day on which the written reasons for an arbitrator’s decision are provided.
In this case, the arbitrator’s reasons were delivered on 16 June 2015 and sent by regular post to Mr Bouwman’s solicitors that day. District Court Judge Wager found that the reasons would have been received on or around 18 June 2015. The notice of appeal was lodged on 6 August 2015.
Mr Bouwman had been legally represented and at no stage did he notify the Court of a change of address. District Court Judge Wager noted that the reasons for decision had been appropriately delivered by post to his lawyers. Even though Mr Bouwman’s evidence was that he only received verbal notification of the reasons for decision on 27 July 2015 and as a result filed an appeal notice on 6 August 2015, his application was still made 46 days after the date that the reasons for decision were delivered to his solicitors.
District Court Judge Wager dismissed the application on grounds that the Court did not have jurisdiction to hear the application because it was not made within time.
This decision again highlights how critical it is that any application for leave to appeal is filed within 28 days after the day on which the written reasons for an arbitrator’s decision are given. Otherwise, appeal rights are lost and the only potential recourse may be the ‘new information’ provision in section 217A of the Act.
Bouwman v Westralian Finance Company Pty Ltd  WADC 49
Schedule 2 settlement not binding until forms signed
The District Court has refused to enforce a Schedule 2 lump sum settlement in the absence of signed documentation.
A settlement agreement under Schedule 2 of the Workers’ Compensation and Injury Management Act 1981 (WA) (Act) was negotiated between James McKellar and Allianz Australia Insurance Limited (Allianz). Four days later and before signing the Schedule 2 documents, Mr Mackellar died from unrelated injuries.
Mr Mackellar’s widow, Helene, sought to enforce the settlement at the Arbitration Service. Allianz contended that Mr Mackellar had failed to make an election to seek a lump sum in respect of a permanent impairment during his lifetime, as required by section 31C of the Act.
The arbitrator dismissed the application, finding that he did not have jurisdiction to determine whether the agreement was binding and enforceable - the equitable remedy of specific performance may only be sought in the Supreme Court.
On appeal, Mrs Mackellar’s solicitors contended that the exchange of letters constituted a contract binding on the parties to join in bringing a formal contract into existence and carry it into execution: Masters v Cameron  HCA 72. However, District Court Judge Scott considered that Masters did not apply as it did not concern a contract subject to compliance with statutory provisions.
Judge Scott followed Moyle v Minister for Works (1979) WAR 183 in finding that signing the Schedule 2 election was personal to the worker and not available to his personal representative after his death.
In so finding, the District Court has drawn a distinction between settlements pursuant to Schedule 2 and section 92(f), given the earlier decision in Nydegger allowed that section 92(f) agreements could still be enforceable where settlement documents were not yet formalised.
Mackellar v Asciano Limited and Subsidiary Companies  WADC 56
Section 61 dispute limited to notice
The District Court has confirmed the limited scope of a hearing and the burden of proof where an employer serves a section 61 notice.
On 6 October 2015 Reginald Rintoul was served with a notice pursuant to section 61 of the Workers’ Compensation and Injury Management Act 1981 (WA) advising him that Mirrabooka/Nollamara Car Transport (employer) intended to cease his weekly payments on the basis of a medical report which indicated that his incapacity was no longer a result of the work injury.
Mr Rintoul disputed the notice. The arbitrator found that she was only required to decide whether the worker’s incapacity resulted from the work injury - the contention stated in the notice. She found that Mr Rintoul’s incapacity continued to result, at least materially, from the work injury. The arbitrator declined to determine whether Mr Rintoul had a partial capacity for work because this alternative contention was not stipulated on the notice.
On appeal, District Court Judge Schoombee found that it is a clear requirement of section 61 that the employer state whether it intends to discontinue weekly payments or reduce and to what amount (or both), and that it would be contrary to the principles of natural justice if the arbitrator could make a finding on the worker’s retained capacity to work and reduce his payments, without notice of that intention.
Judge Schoombee concluded that there is no apparent reason why the burden of proof should be any different in section 61 cases as in section 62 cases. Her Honour found that the employer is required to prove the assertions in the section 61 notice that payments should be discontinued or reduced. If the employer wishes to change the status quo and assert that the worker has regained capacity, or that the incapacity is no longer the result of the work injury, it should carry the legal burden to prove these matters and the worker would have an evidentiary burden to show that the situation had not changed or changed to a lesser degree than asserted by the employer.
This case highlights the importance of carefully drafting section 61 notices, identifying all alternative bases, and specifying the amount of any reduction sought. The onus of proof finding is controversial, given the many differences between section 61 and section 62 applications, and is ripe for future consideration.
Mirrabooka/Nollamara Car Transport v Rintoul  WADC 58
Causation and reasonableness of medical expenses: legal test explained
The WA Court of Appeal has set out a clear causation test for medical and surgical treatment under the Workers’ Compensation and Injury Management Act 1981 (WA) (Act).
Mr Napier underwent cervical fusion surgery in 1998 and further injured his neck in a car accident in 1999. In 2008 he suffered a workplace neck injury for which liability was accepted and by mid-2009 he had returned to full duties. In 2012, he claimed to suffer a further workplace neck injury for which liability was denied.
Mr Napier pursued a determination of liability for the 2012 injury, total incapacity weekly payments and medical expenses including artificial disc replacement surgery. Mr Napier sought an alternative order that his incapacity and medical expenses resulted from the compensable 2008 injury.
The arbitrator found that the 2012 injury was a compensable ‘fresh’ injury and not a recurrence, aggravation or acceleration of the 2008 injury, and that Mr Napier’s incapacity resulted from the 2012 injury and not the 2008 injury. However, the arbitrator did not award the costs of surgery as he was not satisfied that the deterioration of the disc resulted from the 2012 injury.
The arbitrator’s decision was upheld on appeal so Mr Napier appealed to the Court of Appeal. Mr Napier argued that he was entitled to claim medical expenses as long as the treatment was ‘medically reasonable or appropriate’ - for example, to relieve the symptoms of a compensable injury or resulting incapacity.
Justice of Appeal Buss formulated the test as: there must be a connection between a worker’s injury and the relevant medical or surgical treatment. That is, the treatment must be to alleviate, remedy, cure or prevent the deterioration of the compensable injury, a disability wholly or partially caused by that injury, or any symptoms wholly or partially caused by that injury or disability.
Justice Buss identified from the arbitrator’s reasons that Mr Napier’s surgery was not for these purposes and accordingly dismissed the appeal.
The Court of Appeal has formulated a causation and reasonableness test for application by the Arbitration Service in the future and has provided some much needed clarity.
Napier v BHP Billiton (Worsley Alumina) Pty Ltd  WASCA 230
Res ipsa loquitur - mere occurrence of accident implies negligence
The WA Court of Appeal has unanimously rejected a claim of res ipsa loquitur (Latin for ‘the thing speaks for itself’) and an adverse inference by the respondents in failing to call a witness (Jones v Dunkel inference).
Stephen Kelly alleged that one Mr R Scanlan negligently dumped a full load from an excavator into his dump truck, causing neck and back injuries from the resultant violent shake.
Mr Kelly was employed by Ngarda Mining and Civil Pty Ltd (Ngarda) and Mr Scanlan by TSS Recruitment Pty Ltd (TSS), a labour hire company. Mr Scanlan worked under Ngarda’s control at the mine site and, under an arrangement between Ngarda and TSS, was considered a temporary employee of Ngarda.
Mr Kelly sued both Ngarda and TSS and lost at trial. He appealed the primary judge’s finding that Mr Scanlan was not negligent and that TSS was not vicariously liable for Mr Scanlan. The Court of Appeal found it was open to the primary judge to conclude that Mr Kelly had not established the circumstances of the accident and therefore failed to prove breach of duty.
As to res ipsa loquitur, the Court noted that the primary judge found that such impacts were a regular or common incident of loading on mine sites and this fact was not challenged on appeal. As this was outside the experience of lay people to make a determination on, and given that expert evidence did not establish such an occurrence could not occur without negligence, the accident could not be said to speak for itself to show negligence. The Court held that there was an additional requirement that the facts not only speak of negligence, but also point to the defendant’s negligence, which they did not.
Mr Kelly also claimed that the primary judge had failed to draw an adverse Jones v Dunkel inference (where there is an unexplained failure by a party to put evidence before the court) for failing to call Mr Scanlan. The Court noted that a written statement of Mr Scanlan did not suggest that his evidence would have benefited either party, nor was there any basis to expect that Ngarda or TSS, as opposed to Mr Kelly, would call Mr Scanlan. The Court added that Jones v Dunkel inferences do not make up for deficiencies in evidence, as Mr Kelly attempted to do.
The Court found that TSS was not vicariously liable for Mr Scanlan and vicarious liability was transferred from TSS to Ngarda. While a heavy burden of proof is required to shift vicarious liability, the authority to control and the actual control Ngarda had over Mr Scanlon was enough.
This decision illustrates the very limited application of res ipsa loquitur. Most notably, it provides a rare example of a court finding that vicarious liability has shifted from one entity to another in a ‘labour hire’ scenario, although this is again applicable in only limited circumstances, given the specific agreement that existed in this case. The Court left the interesting question of ‘dual vicarious liability’ - that is, two parties found vicariously liable - to another day.
Kelly v Bluestone Global Ltd (In Liq)  WASCA 90
Slippery spillage suit ‘speculative’
The District Court has recently provided comment on whether reasonable care was taken by an occupier of residential premises when a resident slipped and fell on a stain in the common area.
Ms Robinson (aged 67) was the owner and resident of a strata titled unit in Reflections Waterfront Apartments. On 18 February 2012, she slipped and fell on the tiled floor of the common area and injured her right shoulder.
Ms Robinson alleged that she slipped on a spilled stain and that Reflections owed her a duty of care to take reasonable precautionary steps by inspecting and cleaning the common area.
No evidence was brought of the composition of the stain, whether it was slippery or how it came to be on the walkway tiles District Court Judge Stone held that it was unlikely that the stain caused her foot to slip and agreed with Reflections that the cause of the fall was ‘purely speculative’.
District Court Judge Stone considered the system of cleaning the common area to be appropriate having regard to:
- the nature of the premises
- the ability of the person entering the premises to appreciate the danger
- the burden on the defendant of eliminating the danger or protecting people entering the premises from the danger compared to the risk of the danger to them.
Judge Stone was not satisfied that Ms Robinson slipped and fell on something on the tiles or that Reflections caused or materially contributed to her fall and injury. On this basis her claim was dismissed. In case the finding of liability was wrong, damages were assessed at $40,000.
This case illustrates that a failure to employ a system of periodic inspection and cleaning will not of itself amount to negligence. It must also be established that a system of periodic inspection and cleaning would have minimised or avoided the risk of injury.
This decision is pending an appeal.
Robinson v Owners of Reflections Waterfront Apartments West Tower Strata Plan 58085  WADC 22
Curious collapsing chairs case: recovery awarded
A WA government employer has been awarded a full workers’ compensation recovery in a case involving a worker who was sitting on a wooden chair when it unexpectedly collapsed.
Ms Pisan suffered a serious knee injury in the accident, which occurred at a recreation centre owned and operated by the Shire of Northam. Ms Pisan was supervising schoolchildren attending a youth event, in the course of her employment with the Education Department.
The Shire had purchased 270 ‘Martin’ chairs from Ikea for the centre. The chairs were assembled by Shire employees, following Ikea’s written instructions. A former Shire employee testified that she was aware of three other incidents of Martin chairs collapsing and a current employee testified that around 12 of the 270 chairs were previously disposed of due to similar failings.
The three victims of the collapsing chairs (including one former State MP) testified about their experiences. The Shire’s own expert structural engineer testified that the chairs were ill-designed and ill-suited for use on hard, polished surfaces.
The Shire contended that Ms Pisan’s accident was not reasonably foreseeable and that it was not reasonable to require it to replace all Martin chairs.
District Court Judge McCann accepted that the number of chair failures was a small proportion of the whole, but considered that “there was clearly a single endemic problem, so the number was significant.” His Honour found that, given the number and nature of the collapses, the Shire should reasonably have suspected an endemic problem and therefore the risk of a Martin chair spontaneously collapsing was reasonably foreseeable to the Shire for some time prior to the accident.
Judge McCann further held that the risk of a patron being seriously injured outweighed the burden on the Shire in eliminating the risk and that Ms Pisan’s accident would not have occurred if the Shire had discharged its duty of care. The Court therefore awarded an indemnity.
This case illustrates pure negligence concepts in the context of a workers’ compensation recovery claim. Applying the ‘calculus of negligence’, the judge identified actual knowledge of prior similar incidents and the balancing of cost and risk, in finding the occupier liable.
Minister for Education v Shire of Northam  WADC 42
Rare ‘no duty’ finding achieved by occupier
The District Court has examined the scope and content of a contract for services in assessing whether a contractual obligation existed and has found that an injured plaintiff was not owed a duty of care.
Mr Strahan suffered a right knee injury while acting as a vehicle pilot for a load being transported by Tenista Pty Ltd. The convoy pulled into a truck bay before the Willare River Bridge to raise the height of the load (stooling) so that it did not interfere with the bridge’s safety barriers. Mr Strahan alleged that, while assisting the drivers with the stooling process, he stepped off the rear of a trailer onto a metal stool and the stool gave way, causing him to fall.
Mr Strahan alleged against Tenista a breach of contract, contending that he was contractually obliged to assist with stooling. His also claimed that the truck and trailers were ‘premises’ under the Occupiers’ Liability Act 1985 and that Tenista was required to take reasonable care to ensure he did not suffer injury caused by the state of the premises, while his statutory claim relied on the truck and trailer being a ‘workplace’ under the Occupational Safety and Health Act 1984 (WA).
Tenista denied there was any contractual obligation for Mr Strahan to assist with stooling and denied that it owed him any duty of care.
District Court Judge Stavrianou identified many inconsistencies in evidence given by Mr Strahan and Tenista’s two drivers. His Honour noted that a witness not recalling an event does not establish that it did or did not occur.
Judge Stavrianou considered reasonable foreseeability and the salient features of the relationship between Mr Strahan and Tenista, following the High Court’s approach in Kuhl v Zurich Financial Services Australia Ltd. His Honour found that there was no contractual requirement for Mr Strahan to assist with the stooling process, nor had there been requests, instructions or directions for him to assist. Therefore, the facts did not support the imposition of a duty of care
Finally, without any witnesses to the incident, the Court held that Mr Strahan had not proven that the injury was sustained in the manner he alleged. Having found that the statutory breach pleadings added nothing to the negligence claim, Mr Strahan’s claim was dismissed.
This case highlights that a duty of care will not be found simply due to a party’s involvement in an accident. In particular, judges will closely examine contractual requirements in order to analyse whether a duty is established.
Strahan v Tenista Pty Ltd  WADC 76
Family accident not covered by home and contents insurance
The WA Court of Appeal has determined that the father and brother of a 10 year old girl who was seriously injured were not entitled to coverage under their home and contents policy.
Georgia Inglis was run over by a ride-on lawnmower at the home of Daniel and Elaine Sweeney. The lawnmower was driven by the Sweeneys’ 11 year old son, Stephen. It was owned by Georgia’s father, Stuart Inglis. It was alleged that the lawnmower was driven to the Sweeney residence by Georgia’s brother, James (aged 12).
Georgia sued Daniel, Elaine and Stephen Sweeney. They in turn issued third party proceedings against Georgia’s father Stuart and brother James. Stuart and his wife Linda were insured under an Allianz home and contents policy. At the time of the accident, both Georgia and James lived permanently with their parents. Allianz denied indemnity to Stuart and Linda.
The case concerned an exclusion in the policy for Injury to any person who normally lives with the insured. At trial, Stuart and James successfully invoked section 54 of the Insurance Contracts Act 1984 (Cth) which applies where an insurer may, under the policy, refuse to pay a claim by reason of some act of the insured or of some other person. Essentially, in those circumstances (subject to other criterion that are irrelevant here), the insurer may not refuse to pay the claim but may have its liability reduced on account of the prejudice resulting from the act in question.
The Court was required to determine whether the expression ‘a person who normally lives with you’ contained or constituted an ‘act’. The Court unanimously found that an ‘act’ means something done or being done by a person. It is different from a state of affairs or the result of an act. The fact that a ‘person normally lives with’ an insured does not constitute an ‘act’.
The Court noted that whether a person ‘normally lives with’ an insured is a question of fact to be assessed in light of a person’s conduct over an extended period. However, whatever finding is made as to whether someone ‘normally lives with’ another person, this is not an act but more properly a description of a relationship or state of affairs.
The Court’s decision is a common sense interpretation of ‘act’ for the purposes of section 54 and reiterates the importance of the interpretation and application of terminology within insurance policies. When refusing to indemnify an insured, the insurer must consider whether the act or omission in question is ‘a state of affairs’ or indeed an ‘act’ for the purpose of section 54(1).
Allianz Australia Insurance Ltd v Inglis  WASCA 25
Trip on protruding paver: local Council not liable
The WA Court of Appeal has examined the duty of care owed by local governments to pedestrians and has identified possible limitations to the ‘no actual knowledge’ defence in footpath cases.
Wendy Rankilor tripped and fell over a protruding paver on a South Perth footpath. She claimed that the City of South Perth negligently failed to ensure that the footpath was even and not raised.
The primary judge found that the City owed a common law duty of care to keep the footpath reasonably safe for ordinary use, but had not breached its duty. The Court judge further found that, even if the City had breached its duty, the City would not be liable due to the ‘no actual knowledge’ defence in section 5Z of the Civil Liability Act 2002 (WA) (CLA).
Section 5Z provides that a road authority (including a local government) is not liable for harm arising from a failure to carry out road work unless at the time of the failure the authority had actual knowledge of the particular risk that caused the harm. There was no evidence that the City had actual knowledge of the particular risk posed by the paver that caused the injury.
In a joint decision, Justices of Appeal Buss, Newnes and Murphy found that it was plainly open to the primary judge to conclude that the City was not liable, as there was no evidence of anyone previously tripping on the paver, the area of paving had been inspected some 12 to 14 months prior, and there was no evidence of another practicable system for the City inspecting and maintaining the footpath.
While it was not necessary for the Court to consider the section 5Z defence, the question of whether ‘road’ under section 5Z included a footpath was discussed. The Court referred to a New South Wales decision in which this question was considered (Botany Bay City Council v Latham  NSWCA 363) albeit with a different definition of ‘road’.
The question of whether the section 5Z defence extends to footpaths is ripe for determination by a Western Australian court. This depends on the interpretation the definition of road in WA legislation. A finding that it does not extend to footpaths would considerably narrow the application of the defence.
Rankilor v City of South Perth  WASCA 29
Unreliable witnesses and (unproven) hindsight leads to successful recovery
The Supreme Court of Western Australia has dismissed the appeal of Daynite Towing (WA) Pty Ltd (Daynite Towing) against a decision of the District Court to uphold the claim for damages by Regrowth Karri Pty Ltd (Regrowth Karri).
On 28 September 2012, a tourist coach owned by Regrowth Karri was destroyed by fire while being towed between Mullewa and Perth by Daynite Towing. Experts considered that the fire was caused by friction in the coach’s brakes resulting from a loss of air supply, which was shared between the coach and the tow truck. Prior to towing, the tow truck operator identified and fixed five or six leaks in the coach’s air system.
The uncontested evidence was that the tow truck driver could have prevented the fire through undertaking a simple procedure known as ‘caging’ and that the tow truck driver drove at excessive speeds, which contributed to the speed of the development of the friction in the brakes. The tow truck driver stopped to check the coach 3 kilometres and 80 kilometres into the tow before the fire commenced approximately 307 kilometres into the tow.
Daynite Towing appealed on a number of grounds, most notably that the primary judge engaged in a hindsight assessment of the facts in determining that a prudent tow truck driver would have ‘caged’ the brakes prior to towing. In President McClure’s leading judgment, Her Honour determined that there was no evidence to suggest that District Court Judge Stavrianou had used hindsight.
Regrowth Karri also asserted that the District Court erred in determining that the tow truck driver failed to detect changes in the pressure gauges which would have alerted the driver to the loss of air pressure. Her Honour determined that this finding was open on the evidence and noted that the evidence of the tow truck driver was directed at practice in general rather than the specific events on the date of the fire.
President McClure also dismissed Regrowth Karri’s other grounds of appeal, concluding that each of the findings was open on the evidence. President McClure confirmed that the fire would not have occurred but for the negligence of Daynite Towing.
This case illustrates the importance of encouraging employees to undertake proper due diligence and care in undertaking duties in relation to property in its possession to ensure the property will not be at risk of harm. In particular, the importance of compliance with strict policies and procedures which are implemented in order to minimise risk of harm or damage to property.
Daynite Towing Service (WA) Pty Ltd v Regrowth Karri Pty Ltd  WASCA 55
Limitations on appeals: finding of fact must be ‘glaringly improbable’ to be overturned
The High Court has affirmed the circumstances where an appellate court can interfere with a primary judge’s finding of fact, while also analysing the principles of causation.
Graham McDermott sustained serious injuries while a passenger in a helicopter crash. He brought damages claims against Robinson Helicopter Company Incorporated (Robinson) in negligence and under the Trade Practices Act 1974 (Cth), alleging deficiencies in Robinson’s helicopter manual.
The part of the helicopter that caused the accident and other related parts had been assembled and incorrectly re-assembled as part of regular inspections which occurred every 100 hours of flight time. One of the four bolts securing the part was not adequately tightened.
Robinson did not cause the defect and it was not known who did. The helicopter was inspected twice before the accident and the defect was not detected. Mr McDermott claimed that the manual contained insufficient instruction to facilitate detection of the defect.
The manual required a torque stripe to be applied to each of the bolts once tightened and, if that stripe was missing, damaged or incomplete, steps needed to be taken to determine whether the bolt was correctly tightened.
The primary judge dismissed the claim, finding the manual was adequate. However, the Queensland Court of Appeal rejected the primary judge’s findings that it was likely that there was no torque stripe painted on the bolt. The Court of Appeal also found that Robinson breached its duty as the manual did not specifically direct the use of a torque wrench or spanner to tighten the bolts, irrespective of the presence of a torque stripe, during inspections.
The High Court unanimously found that the Court of Appeal incorrectly interfered with the trial judge’s finding of fact that no torque stripe was painted on the bolt, as this finding was not ‘glaringly improbable’. They further determined that it should have been clear to the engineers undertaking the inspection what was required and not due to a deficiency in the manual.
The Court further found that, had there been a breach, Mr McDermott would still have failed to establish causation. They found that the possibility that the stripe had been correctly applied was not any more likely than other possibilities. Further, there was no evidence that a wrench or spanner was any more likely to be adhered to than the manual’s procedure involving torque stripes.
This case highlights the difficulties associated with attempting to overturn findings of fact - appeal courts may only intervene where the facts are ‘incontrovertible’, the testimony is ‘uncontested’, or where the findings are ‘glaringly improbable’ or ‘contrary to compelling inferences’. Further, the High Court has again emphasised that causation findings require clear evidence, not speculative inferences.
Robinson Helicopter Company Incorporated v McDermott  HCA 22
Motor vehicle accidents
Court discusses causation test for negligence
The plaintiff, the driver of a four-wheel drive, was about to execute a left-hand turn when he was hit from behind by a Transperth bus. The force of the impact pushed the plaintiff’s vehicle off the road, over bollards and into a shop.
The plaintiff claimed to have suffered multiple soft tissue injuries with associated psychiatric injury (post-traumatic stress disorder and depression), headaches and sleep disturbance. The bus driver admitted liability but contended that the plaintiff failed to mitigate his loss and that his injuries, loss and damage were caused or materially contributed to by pre-existing injuries.
The plaintiff had various prior injuries, including a soft tissue neck injury in 2001, a right shoulder injury in 2006 and a lower back injury in 2007. District Court Judge Derrick found that numerous aspects of the plaintiff’s evidence and the inconsistent histories provided to the medical practitioners reflected adversely on his credibility and so approached his evidence with caution.
In considering causation, his Honour found that the accident caused the plaintiff to suffer soft tissue injuries to his cervical and lumbar spine and associated symptoms of pain and headaches which had substantially resolved by mid 2012. However, Judge Derrick was not satisfied that the accident was a necessary condition of his left shoulder injury, depression or post-traumatic stress disorder - applying the ‘but for’ test in section 5C of the Civil Liability Act 2002 (WA).
The plaintiff’s depression aggravated his minor symptoms in mid 2012. The Court found that causation was established because the accident materially contributed to the harm - that is, if the accident had not occurred, he would not have been suffering from the minor symptoms. A novus actus interveniens - that is, an intervening act breaking the chain of causation - had not occurred.
This case neatly illustrates basic causation principles such as the ‘but for’ test and novus actus interveniens, highlighting that it is not necessary for a plaintiff to prove that the defendant’s negligence was the sole or even dominant cause of the harm, but rather it is sufficient if the negligence materially contributed to the harm.
CSS v KD  WADC 82
Fatally injured intoxicated pedestrian held two thirds contributory negligent
The WA Court of Appeal has unanimously upheld a District Court judgment apportioning two thirds contributory negligence to a deceased pedestrian.
The pedestrian, Allan O’Connor, was fatally struck by a bus driven by Wallace MacGregor in the early hours of the morning. District Court Judge Braddock found that Mr Macgregor was clearly negligent in failing to see Mr O’Connor and take steps to avoid the collision, but he otherwise drove in an exemplary manner.
Her Honour considered that Mr O’Connor was ‘significantly more to blame’ and therefore apportioned liability two thirds to Mr O’Connor, finding him reckless, particularly given he was wearing a black tuxedo and was heavily intoxicated. There was also evidence that he had been walking on the road earlier that evening and was walking with his back to oncoming traffic.
Mr O'Connor's dependants appealed the finding of him being two thirds negligent and contended that the apportionment between driver and pedestrian ‘will always be in favour of the pedestrian because a motor vehicle has the capacity to do more damage’, relying on Nominal Defendant v Ross  NSWCA 212.
Justice of Appeal Buss rejected this contention, relying on a plethora of case law - in particular, Allianz Australia Insurance Ltd v Swainson  QCA 136, where the court held that a driver of a car will ordinarily bear the larger share of responsibility all things being equal. However, in this case they were not.
On the basis of Mr O’Connor’s conduct, which was not in dispute, the Court found that the contributory negligence apportionment was reasonable.
This case confirms that a driver of a motor vehicle will not always be found more liable than a pedestrian in an accident and that the conduct of the parties will always be a mitigating factor to apportioning liability.
O’Connor v Insurance Commission of Western Australia  WASCA 95
Health professional not negligent if there is more than one treatment option
District Court Judge Sweeney has considered the ‘widely accepted practice’ provisions in section 5PB of the Civil Liability Act 2002 (WA) (CLA).
Mr Wright was admitted to Fremantle Hospital following a car accident. He suffered serious injuries, including a fractured heel.
The heel was treated conservatively. Some months later, he continued to experience heel pain and was referred to a private orthopaedic surgeon, who recommended surgical repair of the heel bone.
Mr Wright alleged that the hospital was negligent in failing to arrange imaging of the heel and ultimately surgery. He claimed that osteoarthritic changes to his heel bone would not have occurred had surgery been performed earlier.
The hospital’s expert testified that there was no consensus amongst orthopaedic surgeons - indeed, there was controversy - regarding whether surgical intervention or conservative management produces better outcomes for patients with heel fractures, which was supported by the medical literature. District Court Judge Sweeney accepted that conservative treatment and surgery both accorded with widely accepted practice at the time of Mr Wright's admission.
Her Honour held that where two or more schools of thought exist in the profession, or where two or more treatment options are available to the patient when competing factors are weighed against each other as part of the exercise of clinical judgement, then each option is capable of being widely accepted even though individual members of the profession might elect to pursue one treatment option over the other.
Judge Sweeney noted that section 5PB(4) of the CLA provides an avenue for the Court to apply its own standards of reasonableness, although such a finding will be an exceptional case - where a qualified medical practitioner acts in accordance with widely accepted practice and yet acts in a manner that is so unreasonable that no reasonable health professional in his position could have so acted.
Her Honour did find that the hospital should have arranged a CT scan before discharging the Mr Wright, which was consistent with both sides’ expert evidence. However, Mr Wright failed to establish causation, as a CT was unlikely to have shown deformity of such a degree as to require surgery. Further, by the time the results of any CT scan would likely have been known, the optimal time frame to correct the deformity had passed and Mr Wright would still have suffered the same harm that ultimately occurred.
Judge Sweeney’s decision illustrates that, while the Bolam test has largely been restored through the CLA, it has been slightly modified in that there exists a very narrow window for plaintiffs to invite the court to apply its own subjective test of reasonableness in the face of expert evidence confirming that the health professional’s acts or omissions accorded with widely accepted practice at the time of the treatment. It is anticipated that this would only occur in the most exceptional of cases, which even Her Honour did not hypothesise on.
Wright v Minister for Health  WADC 86
‘Widely accepted practice’ provision: standard of care, not statutory defence
A WA District Court judge has considered whether the ‘widely accepted practice’ provisions present a statutory defence for health professionals, or form part of the plaintiff’s burden of proof, while also providing some guidance on causation principles where the ‘but for’ test is not met.
Roy Martin, then aged 60, was treated with intravenous antibiotics while an in-patient at Armadale-Kelmscott Memorial District Hospital for a septic condition in his lower back. Following the insertion of the catheters, Mr Martin complained of numbness, tingling and loss of sensation in his right arm. Hospital staff made a working diagnosis of carpal tunnel syndrome.
The septic condition settled and Mr Martin was discharged. However, he continued to experience right arm symptoms. Radiological investigations revealed a large haematoma compressing and damaging his right median nerve. Decompression surgery was performed.
Mr Martin sued the hospital, alleging that radiological investigations should have been undertaken, which he claimed would have led to prompter surgery. He alleged that the delay caused prolonged nerve compression, resulting in permanent disability.
Section 5PB of the Civil Liability Act 2002 (WA) (CLA) requires analysis of competent professional practice as accepted by the defendant’s peers (consistent with the Bolam principle). Mr Martin relied upon two decisions of the NSW Court of Appeal - Dobler v Halverson (2007) 70 NSWLR 151 and McKenna v Hunter & New England Local Health Districts  NSWCA 476 - that the NSW equivalent provision provides a defence for the defendant.
Mr Martin therefore contended that the hospital bore the onus of establishing that his treatment was consistent with widely accepted practice. However, District Court Judge Bowden found that it is clear from section 5PB(6) (which does not appear in the NSW legislation) that the patient bears the onus of proving, on the balance of probabilities, that:
- the acts or omissions of the health professionals were not widely accepted by their peers as competent professional practice; or
- if they were, the act or omission was, in the circumstances, so unreasonable that no reasonable health professionals in their position could have so acted or omitted to do the act complained of.
Ultimately, His Honour found that the hospital had breached its duty of care by failing to perform radiological investigations, given his consistent reporting of symptoms and that his presenting septic condition had largely settled before discharge. Had an ultrasound been performed, he would have undergone surgery while still an inpatient.
Dealing then with causation, His Honour preferred Mr Martin’s expert vascular surgeon’s evidence that he would have had no permanent disability had that occurred. Therefore, the ‘but for’ test - factual causation - had been established, as required by section 5C(1)(a) of the CLA.
His Honour also considered the alternative position, if he was wrong in finding that the ‘but for’ test had been met. All the experts agreed that Mr Martin would likely have had a better outcome, but the hospital’s experts were unable to specify to what degree (a ‘gap’ in the causation evidence). Applying section 5C(2) of the CLA, His Honour found that there was no reason why the hospital should not have responsibility for the harm, having assumed responsibility for Mr Martin’s medical care, and there was no reason why Mr Martin’s harm should be left to lie with him. While on the hospital’s evidence there was a causation ‘gap’, the evidence nonetheless established that the breach ‘was part of a set of conditions necessary to the occurrence of that harm’.
Judge Bowden’s decision departs from persuasive NSW authorities that the ‘widely accepted practice’ provisions gives rise to a statutory defence, placing the burden on health professionals of proving that their practice accords with the widely accepted practice of their peers. Plaintiff lawyers may well continue to contend that the provisions are merely a defence, in which case the WA Court of Appeal will no doubt be required to determine the matter. While the causation ‘gap’ findings were obiter, it is notable that His Honour applied a ‘value judgment’ in favour of Mr Martin because even the hospital’s expert evidence showed that the negligence had increased the risk of the harm occurring.
Roy Charles Martin v Minister for Health  WADC 15
Amendment to definition of industrial award
A new regulation has been effected which expands the definition of ‘industrial award’ in the Workers’ Compensation and Injury Management Act 1981 (WA) (Act). WorkCover’s website states that the amendment ‘is consistent with common practice and does not have any material impact on payments made to workers’. It is beneficial that the regulations have been brought into line with ‘common practice’.
The regulation, which came into effect on 16 April 2016, relevantly stipulates:
3A. Instruments under Commonwealth laws prescribed for definition of industrial award in Act
For the purposes of paragraph (d) of the definition of industrial award in section 5(1) of the Act, the following instruments are prescribed —
a. a fair work instrument as defined in the Fair Work Act 2009 (Commonwealth) section 12;
b. an award-based transitional instrument as defined in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Commonwealth) Schedule 2 item 2 that continues in existence under Schedule 3 Part 2 of that Act.
The regulation confirms that workers covered by Commonwealth instruments are ‘award’ workers for the purpose of calculating weekly compensation payments. This is consistent with common practice and does not have any practical impact on the calculation of weekly payments.
Variations in Prescribed Amount and other payments under the Workers’ Compensation and Injury Management Act 1981 (WA)
|Maximum payments effective 1 July 2016|
|Medical and hospital allowances:||$66,567.00|
|Notional Residual Entitlement Amount:||$304,185.00|
|Capped common law damages [15%-24% whole of person impairment]:||$465,974.00|
|Wheelchair and similar appliance:||$11,579.00|
|Board and lodging per day:||$149.00|
|Meals and lodging per day:||$116.00|
|Vehicle running expenses per kilometre:||$0.46|
|Specialised retraining program:||$166,418.00|
WorkCover issues new consultation directive for interlocutory applications
WorkCover WA has issued a Practice Note advising of the expected standard of consultation for interlocutory applications effective from 14 March 2016. The Practice Note echoes Chief Justice Martin’s well-known decision in Barclay Mowlem Construction Ltd v Dampier Port Authority  WASC 281, in which it was held that oral conferral must take place if written conferral has been unproductive.
- Consultation must be oral, ideally in person but at least by telephone. Notice of an intention to make an interlocutory application or an exchange of correspondence will not amount to consultation. While correspondence may be part of the consultation process, it can only be relied upon if oral consultation is not feasible, in which case exceptional circumstances will need to be identified justifying an interlocutory application being lodged without consultation.
- When completing Section C of the Interlocutory Application form, details must be provided such as who took part in the consultation, when and how it took place, the issues canvassed and the outcome of the consultation. Broad statements that consultation has occurred will not suffice.
- Parties should always consult about whether the matter can be determined on the papers or an oral hearing is required. If an oral hearing is required, a joint list of unavailable dates should be provided to the Arbitration Service with the interlocutory application.
- A failure to properly consult, identify the outcome of consultation, or justify why the requirement to consult ought to be waived, may result in the interlocutory application being rejected or a costs order being made against the parties or lawyers at fault.
- A party served with an interlocutory application must lodge and serve a notice consenting to or opposing the application no later than 2 working days prior to the interlocutory hearing (if opposed, also state the grounds on which it is opposed). Failure to do so may result in the application being determined as if that party did not oppose any part of it or an adverse costs order being made.
- When filing a Memorandum of Consent Order, any explanation of the reasons for the orders sought should be contained in a covering letter to the consent orders, not in the orders themselves. A set of Standard Orders is on the WorkCover website to assist.
Damages Assessment Summary Table
The link below provides a table with a brief summary of the cases delivered in the 2015/2016 financial year comparing the damages that were assessed by the District Court of Western Australia, the Supreme Court of Western Australia Court of Appeal, and the High Court of Australia.
Brief information about the plaintiff and their injury is provided, together with an overview of the head of damages that were assessed in each case.
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