WA Insurance Round-Up – Issue 4


Case updates

Workplace injuries

Plaintiff wholly responsible for accident
Court comments on roles and powers of arbitrators
Authorities confirmed for questions of incapacity and reasonableness
Action struck out where no common law election registered at WorkCover
Adverse credibility findings not an error of law
Section 60 - last resort
Nurse failed to prove infection contracted in the course of employment
Self-represented experienced scaffolder fails to prove negligence or loss
‘Eggshell knee’ – injury while on RTW entitles worker to new prescribed amount

Public liability

Employer’s duty of care outweighs duty of occupier
Landlord’s duty of care revisited

Motor vehicle accidents

Delay in notification not fatal to claim
Travelling too close to vehicle in front found most culpable

General insurance

'Limiting terms' require an express statement of their intention

General liability

Hindsight bias and recreational activities
Go karting - a dangerous activity?

Tort of battery

Problems arising out of inconsistent evidence

Fast facts

Damages assessment summary table

Workplace injuries

Plaintiff wholly responsible for accident

The District Court has dismissed a plaintiff’s claim for damages in respect of personal injuries suffered in the course of his employment based on a finding that he was wholly responsible for his injuries.

Mr Henry was an experienced truck driver engaged to drive tankers to transport and distribute fertiliser from CSBP Ltd’s Kwinana Works to various regional locations. Part of that role involved positioning his tanker next to the loading platform at the Kwinana Works in order to connect and disconnect a hose to its filling port.

Mr Henry found that he was unable to properly position his tanker and so adopted a practice of lowering the loading platform as far as he could, such that there was a gap between the tanker and the platform, over an 18 month period. On 9 December 2009, he slipped and fell through the gap between the tanker and the platform and onto the concrete floor below.

Mr Henry commenced proceedings against CSBP and Chemtrans Pty Ltd, the entity which CSBP had engaged to supply tankers and drivers and which had in turn engaged Mr Henry’s employer to provide his services. Mr Henry claimed that both were negligent and in breach of the Occupational Safety and Health Act 1984 and the Occupiers’ Liability Act 1985 for, among other things, failing to provide a safe system of work.

District Court Judge Birmingham QC found that Mr Henry was wholly responsible for his injuries for the following reasons:

  • CSBP and Chemtrans were entitled to rely on the fact that he was an experienced driver who had been inducted, trained and accredited to use the loading facility and was capable of performing such a task without supervision and instruction.
  • Mr Henry was aware that the loading platform needed to be fully loaded in the proper position and that there was a risk of falling if it was not. He was nonetheless willing to accept the risk as he had continued his practice over a protracted period of time without informing CSBP or Chemtrans.

This decision demonstrates that courts remain willing to deny a claim of negligence or breach of statutory duty in circumstances where plaintiffs fail to take reasonable care for their own safety. Such a defence is more likely to be successful where the employer is able to provide evidence that the worker was adequately trained, experienced in their role and accepted the risk which resulted in the injury over a period of time without report to the employer.

Henry v CSBP Limited and Chemtrans Pty Ltd [2017] WADC 1

Court comments on roles and powers of arbitrators

A District Court judge has rejected an employer’s attempt to broaden the scope of what constitutes an ‘error of law’ while reinforcing long-standing principles that workers’ compensation decision-makers must act judicially.

Ms Treby, a truck driver, claimed to have sustained a back injury on 21 March 2013 as a result of repetitive bouncing, rocking and jolting while driving a truck. She sought weekly payments of compensation from 3 April 2014.

Her employer, BHP Billiton Iron Ore Pty Ltd disputed liability for the claim and the dispute proceeded to an arbitration hearing before Arbitrator Nugawela in 2016, who found in favour of Ms Treby. BHP focused attention on the arbitrator’s reliance upon a particular doctor’s evidence and submitted that the arbitrator’s reasoning was unreasonable in the Wednesbury sense - that is, it was so unreasonable that no reasonable arbitrator could rely on it.

In deciding the appeal, District Court Judge Herron analysed the state of the law in Australia as to what constitutes an error of law, as well as the provisions of the Workers’ Compensation and Injury Management Act 1981 relating to the dispute resolution system and the roles and powers of arbitrators.

Counsel for BHP submitted that an arbitrator is not a court and therefore subject to principles similar to those governing how administrative bodies or tribunals must exercise their jurisdiction. The purpose of this submission was to contend that the arbitrator ought to have made certain findings regarding the medical evidence, even though BHP’s representative had made no submissions to that effect at the original hearing.

His Honour rejected that submission and was of the view that an arbitrator is more akin to a court than an administrative body or tribunal. His Honour stated that an arbitrator ‘is required to make findings of fact and to decide questions of law, to resolve disputes about the facts and the law’.

Judge Herron also rejected BHP’s submission that the concept of ‘error of law’ had been broadened since the High Court’s seminal decision in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. His Honour found that, if that were the case, then the WA Court of Appeal would have considered this in prior decisions examining error of law in workers’ compensation cases.

His Honour found that, regardless of these matters, there was no issue with the arbitrator relying on the medical evidence as he did and that the evidence was of some probative value. His Honour ultimately found that that there was simply no question of law involved in the appeal and therefore determined that even leave to appeal should be refused.

This decision serves as a useful reference point on Australian law regarding ‘error of law’ and once again re-affirms that arbitrators are bound to act judicially, a principle that was applied to the former regime of review officers as discussed in Summit Homes v Lucev (1996) WAR 566.

This decision is pending appeal.

BHP Billiton Iron Ore Pty Ltd v Treby [2017] WADC 6

Authorities confirmed for questions of incapacity and reasonableness

A District Court judge has addressed a vexed issue regarding cases involving multiple successive injuries where the prescribed amount for weekly payments has been exhausted for the first injury.

Mr Smith had an accepted claim for a left shoulder injury while working for WA Plantation Resources Pty Ltd. While on a return to work program for that injury, he suffered a right shoulder injury. Liability was disputed and the matter went to arbitration for a determination of liability and payment of expenses, including surgery.

WA Plantation submitted at arbitration that the right shoulder injury was a ‘temporary aggravation’ following on from the earlier compensable left shoulder injury and that its liability to pay compensation was limited to the prescribed amount for that claim, which had been exhausted by the time of arbitration.

The arbitrator found that the right shoulder injury had contributed to Mr Smith’s incapacity from time to time. However, for the relevant period, the arbitrator was not satisfied that the right shoulder injury was a material contributing cause of his incapacity.

Mr Smith appealed the decision, contending that the arbitrator failed to ask whether his incapacity resulted from the second right shoulder injury and instead asked whether the first left shoulder injury was the main cause of the incapacity.

Judge Troy found that the arbitrator did not erroneously focus on the main cause of the incapacity (as alleged by Mr Smith) but rather made a factual finding that the left shoulder injury was the sole cause of the total incapacity and was entitled to make that finding.

His Honour confirmed that where there is more than one possible cause of incapacity, it is sufficient that the work injury be a material contributing cause: Kanowna Belle Goldmines v Feierabend [2003] WASCA 246 [13]. In finding against Mr Smith, His Honour held that the arbitrator had correctly applied this test but was simply not satisfied that the right shoulder injury was indeed a material cause of the relevant period of incapacity.

As for whether the proposed medical expenses were reasonable, Judge Troy found that the arbitrator placed greater emphasis on the older, less authoritative case of Barrick Gold of Australia Pty Ltd v Green (a 2003 decision of the former Compensation Magistrates Court) than the WA Court of Appeal’s decision in Napier v BHP Billiton (Worsley Alumina) Pty Ltd (2015) 49 WAR 243 and by doing so erred by taking into account doubt that the proposed surgery would put an end to the incapacity.

His Honour confirmed that the correct question (as set down in Napier and subsequently approved by the Court of Appeal in Hawker Pacific Pty Ltd v Lang [2015] WASCA 256) is whether the proposed surgical treatment was for the purpose of alleviating, remedying, curing or preventing the deterioration of the injury or the resultant symptoms. Satisfied that the surgery would remedy or at least alleviate Mr Smith’s symptoms, Judge Troy held it to be a reasonable expense.

This decision illustrates that it is not sufficient for a worker to point to multiple injuries and merely assert a causal link between any (or a combination) of those injuries and subsequent incapacity. Rather, it is necessary for a worker to adduce clear medical evidence supporting a causal link. The decision also highlights that arbitrators should be applying the WA Court of Appeal authorities of Napier and Lang, and that old authorities regarding the reasonableness of treatment may no longer be applicable.

This decision is pending appeal.

Smith v WA Plantation Resources Pty Ltd [2017] WADC 8

Action struck out where no common law election registered at WorkCover

The District Court has dismissed a self-represented worker’s appeal from a registrar’s decision to strike out his claim for damages because he failed to satisfy the common law threshold requirements under the Workers’ Compensation and Injury Management Act 1981 (WCIM Act).

Section 93K(4) of the WCIM Act precludes the awarding of damages for a workplace injury unless an ‘election’ is lodged in the prescribed manner. In effect, an election may not be lodged unless the worker has obtained an assessment from an approved medical specialist of a permanent whole of person impairment of at least 15%.

In general terms, the election cannot be lodged after a certain time limit has passed and assumes that a worker has made a claim for weekly compensation payments which has either been approved or determined in their favour.

In considering Mr Gable’s appeal, Judge Parry confirmed that the power to order summary judgement should be exercised with great care and caution and should never be exercised unless it is clear that there is no real question to be tried in the proceedings.

Nonetheless, His Honour found in this case that the claim was ‘bound to fail’ given the absence of the election. Indeed, while Mr Gable had lodged a workers’ compensation claim, he had not pursued it to hearing. He tried pursuing his claim through the State Administrative Tribunal, but that claim was also summarily dismissed as exclusive jurisdiction to determine workers’ compensation disputes resides with WorkCover WA.

Given Mr Gable was determined enough to pursue various purported remedies for his alleged workplace injury, it is unclear why he did not simply litigate his disputed claim at WorkCover WA and chose instead to pursue a common law damages claim.

The result of the decision is no doubt an obvious one to those who practice in the jurisdiction. It nonetheless serves to reinforce that it is not possible to subvert the common law access regime implemented by the WA legislature.

Gable v Steel Cap Recruitment Pty Ltd [No 2] [2017] WADC 10

Adverse credibility findings not an error of law

The District Court has dismissed an appeal by a worker claiming that his psychiatric illness was caused by work, citing the lack of credibility of his evidence.

Mr Hayter was employed on a FIFO basis by HWE Mining Pty Ltd in the Pilbara as a machine operator in November 2013 and promoted to a leading hand/supervisor role in March 2014. He alleged that he developed depression after being reverted to his previous role in mid-late 2014 and subsequently placed on standby and pick-up duties, spending days of a shift in the crib room with no work. He left the site before the end of his swing on occasions in August, September and October 2014 and had not returned to the site since October 2014. The arbitrator was not satisfied that Mr Hayter’s work contributed to a not insignificant or material degree to his depression and dismissed the claim, finding that the only relevant potential contributing factor was stress associated with his matrimonial difficulties.

Critically, the arbitrator had preferred the evidence of HWE and Mr Hayter’s supervisors to Mr Hayter’s evidence, especially with regard to the date on which he was reverted to his previous role, the duties he was assigned in that role, and the circumstances of his leaving site early on several occasions (including before he had reverted to the operator role). The arbitrator found he had provided the reason of ‘matrimonial difficulties’ for his distress at work several times, and Mr Hayter’s submission that these had merely been ‘white lies’ to allow him to leave site was extremely damaging to his credibility generally. It was further noted that while Mr Hayter’s wife attested to no such disharmony existing between them, she was a self-serving witness and might be retrospectively downplaying any marital issues - damaging the probative value of her evidence.

The decision was appealed to the District Court on the basis of several alleged errors of law, including that the arbitrator had incorrectly assumed there was conflict between the evidence of the two parties, overlooked critical points of evidence and allegations made by Mr Hayter, not provided adequate reasons for concluding that marital problems had caused Mr Hayter’s distress, and incorrectly required a contemporaneous complaint to evidence the cause of the mental injuries.

Judge Goetze dismissed the appeal and held that there had been no errors of law, finding the grounds of appeal were aimed at challenging the arbitrator’s factual findings. His Honour also noted significant inconsistencies within Mr Hayter’s evidence and did not overturn any of the arbitrator’s findings. Importantly, this included the arbitrator’s assessment of the credibility of witnesses with His Honour noting that an appellant court should require strong reasons for doing so as they do not have the fact finder’s opportunity of seeing evidence-in-chief and cross examination.

This decision again highlights that errors of fact cannot be dressed up as errors of law in order to ground an appeal. His Honour’s decision also reiterates that the onus falls on workers to prove that their employment contributed to a not insignificant or material degree to their psychiatric injury. Workers’ credibility and the persuasiveness of their evidence will be seriously damaged where they previously made representations to their employer as to other non-work related factors leading to the onset of stress and incapacity.

Hayter v HWE Mining Pty Ltd [2017] WADC 26

Section 60 - last resort

The District Court has dismissed an appeal by an employer against the decision of an arbitrator to dismiss its section 60 application on the grounds that it was incompetent.

On 28 June 2013, Ms Hunter sustained a right hip injury in the course of her employment with Regis Aged Care Pty Ltd. Liability was accepted for the claim.

Ms Hunter participated in a return to work program with Regis in her pre-injury occupation as a nurse. Regis ultimately terminated the return to work program as she was only capable of undertaking her duties with cumbersome restrictions.

Regis offered Ms Hunter retraining as a phlebotomist, which she refused as she wanted to remain a nurse. Regis obtained evidence which supported that she was fit for the duties required of a phlebotomist and pursued an application at WorkCover WA pursuant to section 60 of the Workers’ Compensation and Injury Management Act 1981 (WCIM Act), on the basis that Ms Hunter had failed to mitigate her loss by refusing to participate in phlebotomy training.

Arbitrator Davies refused the application on the basis that Regis had not persuaded her that section 61 or section 62 were not available to it. Arbitrator Davies noted that, in accordance with Taylor v Star Broken Meats (Unreported, WASCA Library No 920434, 26 August 1992), an application under section 60 brought in circumstances where remedies under s61 or s62 were available would be incompetent.

District Court Judge Parry found that the second limb of s61 applied - that a ‘medical practitioner has certified that the incapacity is no longer a result of the injury’ - as he considered that the evidence that the worker was fit for the duties of a phlebotomist was consistent with a view that ongoing capacity does not relate to the injury. His Honour, therefore, found the section 60 application incompetent and that it should be refused on the threshold basis. The appeal was dismissed.

This case illustrates the importance of ensuring that remedies under s61 or 62 of the WCIM Act are not available before pursuing a section 60 application. The courts are willing to take a wide interpretation and employers need to be aware that, while it may not at first glance appear to be applicable, section 61 applies in circumstances where a medical practitioner has certified a worker as fit to work in alternative duties.

This decision is pending appeal.

Regis Aged Care Pty Ltd v Hunter [2017] WADC 12

Nurse failed to prove infection contracted in the course of employment

A District Court judge has determined an appeal involving the deeming provisions in sections 32 and 44 of the Workers’ Compensation and Injury Management Act 1981 (WCIM Act) in relation to communicable diseases.

Mrs Glenister was employed as a registered mental health nurse at Graylands Hospital. In January 2014, she contracted a methicillin-resistant staphylococcus aureus (MRSA) infection following symptoms of intense right ear pain. She had pre-existing symptoms in her right ear, but the bacterium was not isolated at that time.

Mrs Glenister alleged that she contracted the MRSA infection as a direct result of her nursing duties. She claimed there was a patient who was diagnosed with a MRSA infection, but it was subsequently discovered that this patient had a different strain of the infection. Mrs Glenister then relied on the fact that the particular MRSA strain that she contracted was known as a ‘health care associated’ MRSA and essentially the only way she could have contracted it was due to her duties as a nurse in a healthcare facility.

Judge O’Neal overturned the arbitrator’s findings that Mrs Glenister did not provide sufficient medical evidence for him to find that the MRSA infection was a communicable disease within column 1 of Schedule 3 in the WCIM Act. His Honour held that whether a disease is communicable meant merely whether it was able to be transferred from one person to another and a MRSA infection is, as a matter of common knowledge, readily transmitted from person to person. His Honour found that a court or tribunal can take judicial notice of that, without specific expert evidence.

However, with respect to Mrs Glenister’s contention that s44 of the WCIM Act deems the MRSA infection to be caused by the nature of the worker’s employment, she failed to address or provide evidence on the ‘description of process’ as required in column 2 of Schedule 3 of the WCIM Act in that she did not lead evidence as to the ‘reasonable period of incubation’ of her MRSA infection.

The only evidence that she tendered was an annual report for 2012-2013 of the Health Care Infection Surveillance Western Australia which dealt with the reported incidences of infections within 45 hospitals - none of which was Graylands Hospital - and the focus of the report was on patients, not healthcare workers within those facilities. The arbitrator correctly concluded that the 48 hour period referred to in the report was insufficient in itself to resolve that issue.

As such, Mrs Glenister had not led sufficient evidence for it to be reasonably presumed, on the balance of probabilities, that her MRSA infection was contracted in the course of her employment due to the nature of her employment.

This decision reaffirms that workers must establish that an infection was acquired in some work related context before they can rely on the deeming provisions (which then case a ‘reverse onus’ on the employer to disprove the connection). The evidentiary burden on Mrs Glenister, in this case, would not have been difficult to overcome and should serve as a reminder that it is insufficient to merely rely on the beneficial nature of the legislation without adducing some evidence to satisfy the threshold requirements for accessing the deeming provisions.

This decision is pending appeal.

Glenister v NMAHS - Mental Health (Graylands Hospital) [2017] WADC 14

Self-represented experienced scaffolder fails to prove negligence or loss

The District Court has provided a timely reminder for injured workers that, while the duty owed by an employer is non-delegable, it is not a strict liability and remains subject to the overarching principle of reasonableness.

On 27 June 2011, Mr Derrick was injured while working on the construction of a residential village on Barrow Island. He had climbed onto the deck of a 260 elevated work platform to collect some tools left there the previous day.

Mr Derrick was hanging onto the platform grab rail with his left hand, the swing gate with his right hand and his feet were on the bottom rung of a fixed ladder on the side of the platform. The swing gate sprang shut and he did not release the grip of his left hand. He suffered an injury to his cervical spine and proceeded to make an uncapped common law claim for damages.

Mr Derrick alleged that Thiess Pty Ltd exposed him to a foreseeable risk of injury as it had failed to carry out any proper inspection of the platform, failed to provide any or any proper instructions as to the safe method of accessing or egressing the platform, failed to instruct him as to a safe means of egress, and failed to provide proper steps or alternative means of egress.

Thiess denied it was negligent and pleaded that the platform was safe and manufactured in accordance with Australian Standards and that Mr Derrick did not release his left arm before placing his foot on the ground.

District Court Judge Wager applied the position in Transfield Services (Australia) Pty Ltd v Wieland [2014] WASCA 41. Her Honour noted that the duty of an employer is that of a reasonably prudent employer, the duty is not to ‘safeguard a worker completely from all perils’ and the test of foreseeability must not be performed in hindsight.

Her Honour found that Mr Derrick was an experienced and competent scaffolder who had worked in the Pilbara environment previously and had been working with similar platforms for about six months prior to the injury. There was no evidence that the platform was not fit for its purpose. She also found that as he had opened the spring loaded gate in order to go up to get the tools, he would have been aware of the spring loaded gate on the way down.

Judge Wager held that there was no evidence that the employer had failed to exercise reasonable care in discharging its duty at common law or that it had breached any statutory duty, and therefore dismissed Mr Derrick’s claim.

Derrick v Thiess Pty Ltd [2017] WADC 41

‘Eggshell knee’ – injury while on RTW entitles worker to new prescribed amount

The District Court has upheld the findings of a WorkCover arbitrator on appeal, indicating that an injury suffered during a return to work is a new injury, entitling a worker to a new prescribed amount even if a previous compensable injury played some part in the new injury - an employer must take a worker as they find them.

Mr Miller was in receipt of weekly compensation payments for a workplace injury to his left knee sustained on 9 November 2009 in the course of his employment Engine Protection Equipment Pty Ltd. On 12 April 2011, his knee gave way while on a return to work program with a host employer, causing him to fall and injure his lower back (pre-existing asymptomatic lumbar degeneration rendered symptomatic).

Mr Miller remained on weekly payments in respect of the knee injury until 12 December 2014 when he reached the prescribed amount under the Workers’ Compensation and Injury Management Act 1981 (WCIM Act). Liability for a claim in respect of the lower back injury was erroneously accepted by EPE’s insurer in February 2015 and payments commenced until being later ceased when it was determined at arbitration that there was a genuine dispute as to liability. Mr Miller then claimed weekly payments and took the matter to arbitration.

EPE submitted that the back injury was a result of the earlier knee injury, and compensation for ongoing incapacity should be paid under the knee injury claim, noting that Mr Miller had exhausted the prescribed amount. Alternatively, EPE argued that the back injury was an aggravation of a pre-existing injury as per s5(d) of the WCIM Act, and would not be compensable under s19(1)(b) as it arose during a return to work program and not during his employment.

Arbitrator Ekanayake found that Mr Miller had suffered an injury both under limb (d) and a personal injury by accident in the course of his employment. Further, he indicated that the back injury was a compensable injury in its own right rather than merely an effect of the knee injury. As Mr Miller’s back injury materially contributed to his ongoing incapacity, he was entitled to compensation out of a second prescribed amount.

On appeal, District Court Judge Scott affirmed the arbitrator’s findings, noting that there was nothing to prevent an injury falling within more than one statutory definition in s5 of the WCIM Act. Following the general principles in Ansett Transport Industries (Operations) Pty Ltd v Srdic (1982) 66 FLR 41, His Honour noted that Mr Miller’s injury did not need to be caused by his employment but merely occur while engaged in it. The mere fact that there was a predisposing physical condition did not prevent his back injury from being a personal injury by accident.

His Honour rejected the argument that Mr Miller’s second injury was caused by the first, noting per March v Stramare (1991) 171 CLR 506 that the question of causation should be informed by common sense rather than slavish adherence to the ‘but for’ test, and that a finding that the knee injury had caused the back issues simply because he would not have fallen but for his knee injury was not reasonable.

This case illustrates that an employer can be liable for an injury even in situations where a worker is engaged in a return to work program with a host employer. In the no-liability statutory system, this may lead to particularly onerous situations where an employer is liable for a new claim with a new prescribed amount, despite having little or no control over the work environment. It also reaffirms the principles that causation should be a common sense test and the application of the ‘eggshell skull’ principle in workplace injury cases.

This decision is pending appeal.

Engine Protection Equipment Pty Ltd v Miller [2017] WADC 71

Public liability

Employer’s duty of care outweighs duty of occupier

A hailstorm caused damage to a property in March 2010 and Frontline Roofing was engaged to perform repairs to the damaged roof. Frontline engaged Terry’s Crane Hire (TCH) to provide a crane and staff, to assist with the repairs. On 20 September 2010, Mr Coote stepped through a skylight which had been damaged in the storm and suffered serious injuries as a result.

The District Court was required to determine whether Mr Coote was an employee or independent contractor of TCH and whether Frontline, as principal contractor, owed him a duty of care and if so whether that duty was breached.

Judge Bowden considered that in some circumstances a principal will have a duty to use reasonable care to ensure that a system of work for one or more independent contractors is safe. His Honour found that Frontline did owe Mr Coote a duty of care at common law and in accordance with the occupiers’ liability legislation.

His Honour also found that Frontline was the occupier of the premises and that it could have easily alleviated the risk of injury to Mr Coote, either by placing wooden planks over or steel mesh underneath the skylight. This was normal practice in these circumstances and on this basis His Honour determined that Frontline had breached its duty to Mr Coote.

Judge Bowden had regard to the totality of the working relationship including systems and work practices and concluded that Mr Coote was an employee of TCH: it was aware of his lack of experience, failed to provide him with any training, failed to carry out a site inspection, did not give him any specific instructions and left it for him to determine whether it was safe to go on the roof. His Honour considered that TCH had breached the duty owed to Mr Coote to take all reasonable care to institute a safe system of work and ensure that its employees would not be exposed to unnecessary risk.

In apportioning liability, His Honour found that, although Frontline was aware of the defect with the premises and did not take sufficient steps to reduce the risk of injury or warn that the skylight was damaged, TCH’s breach of duty was greater than Frontline’s. On this basis, liability was apportioned as 60% to TCH and 40% to Frontline.

This case exemplifies the paramount duty of care owed by employers to their employees, but also demonstrates that an occupier will not escape a significant apportionment of liability in circumstances where there has been a breach of duty.

Coote v Terry’s Crane Hire Pty Ltd [2017] WADC 28

Landlord’s duty of care revisited

The District Court has revisited a landlord’s duty of care to tenants, finding that a tenant has failed to establish that her landlord breached his duty of care.

The tenant, Ms Taylor, knocked her elbow on a ceramic soap holder, sustaining significant injuries. Ms Taylor argued that her landlord, Mr Fisher, breached his duty of care by failing to maintain and repair the soap dish and, more broadly, by failing to ensure that the premises were fit for occupation, free of defects and free of inherent risks.

Mr Fisher conceded he was aware that the ceramic soap dish had been broken and repaired prior to Ms Taylor’s family leasing the property. He otherwise denied the extent of the damage to the ceramic dish and maintained that he did not observe anything to concern him and that he relied on Ms Taylor’s mother notifying him of any maintenance required at the property.

There were varying and conflicting accounts as to the extent of damage to the soap dish. Judge Levy held that in considering whether a reasonable person in Mr Fisher’s position as a landlord would have foreseen the risk of injury, it is relevant to note that none of the witnesses including Ms Taylor’s mother contemplated such a risk. Prior inconsistent statements caused His Honour to have serious doubts about the accuracy and reliability of the evidence in Ms Taylor’s case.

His Honour considered the case of Jones v Bartlett and held that in the absence of a contract supportive of a higher duty, the duty of a landlord in relation to the safety of premises does not, in general, require them to commission experts to inspect premises to look for latent defects, nor is it a duty to make premises as safe as reasonable care can make them.  Rather, a landlord is required to inspect the property from time to time and carry out general maintenance and repairs.

Judge Levy found that despite Mr Fisher’s knowledge that the soap dish had previously been broken and repaired, the risk of injury was not foreseeable at the time he leased the property to Ms Taylor’s family. During the tenancy, Mr Fisher was not made aware of the poor condition of the soap dish by any of the property’s occupants.

Had Mr Fisher been put on notice about the condition of the soap dish, a reasonable person would have foreseen that a failure to remove or repair it would have involved a risk of injury. On this basis, His Honour was not satisfied that Mr Fisher’s failure to inspect the soap dish gave rise to a breach of his duty of care and Ms Taylor’s claims were dismissed.

This case reaffirms the longstanding principle that a risk of harm must be foreseeable, not insignificant, and in the circumstances, a reasonable person would have taken precautions. Landlords are only required to undertake appropriate property inspections and rectify defects which are obvious to a reasonable person.

This decision is pending appeal.

Taylor v Fisher [2017] WADC 30

Motor vehicle accidents

Delay in notification not fatal to claim

A District Court judge has considered the circumstances in which a failure to give prompt notice of a claim under s29 of the Motor Vehicle (Third Party Insurance) Act 1943 can preclude the claim.

On 13 March 2012, Ms Stojceska was a passenger in a vehicle driven by Mr Muharemovic, when he collided with a stationary vehicle. Ms Stojceska made a claim for damages for injuries to her knees and lower back allegedly sustained in the accident. She also claimed hip pain and a psychological condition.

Judge Staude held that Ms Stojceska had failed to give notice to the Insurance Commission of Western Australia (ICWA) as soon as reasonably practicable that she had intended to claim damages in relation to the accident.

Ms Stojceska’s failure was not due to mistake, inadvertence or another reasonable cause, but due to her having had no significant injury that she could attribute to the accident in the period that elapsed from the time of the accident until she made her claim some three years later. She did not report any injury as a result of the accident to her treating health professionals until two years after it occurred.

His Honour determined that despite her failure to give notice, ICWA was not prejudiced in its defence. Given Ms Stojceska had not attributed any type of injury to the accident in the years prior, it was unlikely that taking steps to verify her injuries would have benefited ICWA’s position.

Counsel for ICWA conceded that she had sustained a knee injury but maintained that there was no causal link between the accident and her other alleged injuries. Turning on Ms Stojceska’s medical history, His Honour labelled her an ‘unreliable historian’ and found the very fact that she did not give ICWA notice of her intention to claim consistent with her suffering no significant injury. He considered that her failure to report any physical or psychological injury supported the contention that her injuries were so minor that they required no immediate treatment and resolved within a short period of time.

His Honour considered that the question of causation was problematic in this case as Ms Stojceska did not complain of any physical injuries until 30 April 2012 when she saw her GP briefly, and then not again until 19 February 2014.  She did not complain of psychological symptoms until she attended a medico legal review with a psychiatrist on 10 June 2015.

It being for Ms Stojceska to satisfy the Court that the extent of the injuries claimed was caused by Mr Muharemovic’s negligence, His Honour found that the treatment of her ongoing hip pain and psychological condition could not be said to have been caused by the accident.

This case highlights the need for ICWA to show material prejudice by the late notification of a motor vehicle damages claim and emphasises the courts’ reluctance to find a causal link between an accident and a plaintiff’s injuries where the injuries are not reflected in their medical records.

Stojceska v Muharemovic [2017] WADC 9

Travelling too close to vehicle in front found most culpable

The District Court has determined liability for a motor vehicle accident in which a driver adjusted the direction of her vehicle, creating an apprehension of a collision in a motorcycle rider travelling too close behind her.

Mr Baker alleged that Ms North, in the course of giving way to an oncoming vehicle driven by Mr Carello, veered left as he was about to overtake her, causing him to take evasive action and lose control of his motorcycle. Mr Baker suffered a dislocated shoulder in the accident.

Ms North alleged that she had slowed to give way to Mr Carello’s vehicle as she intended to turn right and that she turned her steering wheel about a quarter of a turn in order to straighten up when she saw in her rear vision mirror Mr Baker lose control of his motorcycle. Mr Carello’s evidence was broadly similar. The court found that Ms North first noticed Mr Baker when she heard the screech of his tyres behind her.

While the evidence of the circumstances differed significantly between the parties, it was an unusual feature of this case that Mr Baker did not push his account of the accident but rather relied on Mr Carello’s account. Counsel for Mr Baker closed by contending that Ms North had moved her vehicle to the left to give way to oncoming traffic after indicating to turn right, causing him to take the evasive action that caused him to crash.

Judge Staude found that Mr Baker’s evidence was ‘so unsatisfactory’ as to taint his entire account, and universally rejected it wherever it conflicted with that of Ms Baker and Mr Carello. His Honour considered that both parties had causally contributed to the accident - Mr Baker had been travelling too close to Ms North, but Ms North had failed to keep a proper lookout and negligently straightened her vehicle in such a way as to cause an apprehension of a collision in Mr Baker.

As another example of the application of the long standing High Court principles in Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529, His Honour found that Mr Baker’s ‘degree of departure from the standard of care of the reasonable man’ was conspicuous and involved a greater degree of culpability, and apportioned liability 70/30 in favour of Ms Baker.

Baker v North [2017] WADC 64

General insurance

'Limiting terms' require an express statement of their intention

The District Court has considered the circumstances in which an insurer will be able to rely on a ‘limiting term’ to deny indemnity under an insurance contract.

Boss Shop Fitting Pty Ltd was contracted by Manitowoq Platinum Pty Ltd to provide a total fitout for its restaurant. The total fitout included all of the plumbing works and a plumber was contracted by Boss for this purpose. Shortly after completion of the fitout, serious issues arose with the plumbing and it became clear that significant rectification was required.

Manitowoq initially sought damages from Boss in negligence and breach of contract but abandoned this action upon Boss’s liquidation and deregistration. Manitowoq then pursued Boss’s insurer, WFI Insurance Ltd, pursuant to section 601AG of the Corporations Act 2001 (Cth).

The principle issue was whether WFI was required to indemnify Boss under the insurance contract. WFI relied on a condition that required Boss to ‘comply with legislation and Australian standards’. The evidence clearly demonstrated that the plumbing works did not comply with the relevant Australian standards. Counsel for Manitowoq submitted that when the condition was read in the context of the insurance policy it was ambiguous and required reading down to give effect to its commercial purpose.

Judge Davis considered the relevant authorities and found they were ultimately determined on their own facts and policy terms. Her Honour considered that determining a condition precedent required an investigation of the context, nature and objective of the contract and contra proferentem where there was ambiguity.

Her Honour found that on construing the contract, there was no clear common intention that liability would be denied if the condition was not complied with. To avoid liability, WFI required a clear and express statement that compliance was a condition precedent to indemnity. Where the effect of non-compliance is unknown or uncertain or is reasonably capable of having more than one meaning, a denial of liability will not be sustained. Boss was required to take reasonable care to comply with the condition, though it had done this as it was not reckless in its supervision of the plumber.

This case highlights the importance of including an express statement as to the effect of a clause when attempting to limit liability in insurance contracts through the inclusion of limiting terms.

This decision is pending appeal.

Manitowoq Platinum Pty Ltd v WFI Insurance Ltd [2017] WADC 32

General liability

Hindsight bias and recreational activities

The District Court has cited the need for caution regarding ‘hindsight bias’ when assessing foreseeability of injury and has provided us with some useful insight into what constitutes a risk warning, in dismissing a claim for damages.

Ms Lightfoot and her friend pre purchased tickets for a dolphin watching cruise with Rockingham Wild Encounters Pty Ltd. On 23 December 2012, they attended the office of Wild Encounters, signed a waiver and boarded the cruise boat. They were some of the last passengers to board and were seated at the front of the vessel. Employees of Wild Encounters insisted at trial that they had warned passengers with pre-existing back injuries to sit at the back of the boat, but Ms Lightfoot and her friend advised they did not hear this warning. Her friend had a pre-existing back injury and gave evidence that had she heard such a warning she would have sat at the back for the trip.

The cruise commenced and at one stage of the journey, the skipper passed through a passage in the reef. The cruise was the skipper’s third for the day and passing through this area of water had been previously uneventful. On this occasion, however, a wave pitched up causing the boat to bounce over the wave and land heavily back down on the water. Ms Lightfoot suffered a spinal injury and required surgery to place screws and a pin in her back. Her injuries were significant and her recovery was delayed.

It was suggested at trial that the staff on the boat had been negligent in their briefing and warning to passengers. Judge Braddock considered that it was clearly foreseeable that a passenger might suffer potentially serious injury if she were thrown about at the front of the boat, and the skipper would have been aware of this risk due to his level of experience.

Her Honour held that, while a warning may not need to precisely fit the events in detail, it must be a warning which relates to the risk, such that a person could realistically act upon it. She concluded that there was no evidence to support a defence under s5I of the Civil Liability Act 2002.

Her Honour then turned to whether Wild Encounters had been negligent in its decision to travel through the gap in the reef and whether the skipper should have realised that passing through the gap was dangerous. When determining the foreseeability of this wave ‘pitching up’ under the boat and causing injury to a passenger, Her Honour cautioned against ‘hindsight bias’, a concept previously discussed in Shire of Gingin v Coombe [2009] WASCA 92 at 43 (para 132).

The skipper gave evidence that on that particular day the passage via the reef was more protected from the conditions than the normal channel and the boat had safely navigated the gap three times that day. Without the benefit of hindsight, Her Honour considered that it was not unreasonable for the skipper to navigate through the channel; he was familiar with the area and had navigated the passage previously that day, the swell forecast that morning was moderate and he kept a proper lookout. Consequently, Ms Lightfoot’s claim was dismissed.

The risks associated with the application of hindsight bias have been considered in numerous cases, and this decision affirms the courts’ position with respect to the question of foreseeability. This decision provides a practical example of the assessment of a duty of care needing to be undertaken looking forward from a time before the occurrence of the injury rather than backward from the time of the claim (Rosenberg v Percival [2001] HCA 18).

This decision is pending appeal.

Lightfoot v Rockingham Wild Encounters Pty Ltd [2017] WADC 62

Go karting - a dangerous activity?

The District Court has awarded damages to an amateur go-kart driver who lost control of a go-kart and veered off track, colliding with a tree on the perimeter of the carpark and suffering serious injury.

On 25 August 2012, the Apostolic Church Australia Ltd held a spiritual growth conference for Church members. A go-karting activity was organised for the lunch break, which Ms Dixon participated in. The activity was organised by the Church and Mr Holman was one of the conference organisers.

After completing some laps in the go-kart, Ms Dixon lost control of the kart and it headed straight towards a tree outside of the track. She tried to apply the brake but instinctively slammed her right foot down which hit the accelerator instead. As a result of the collision, Ms Dixon received a serious injury to her right leg resulting in it being amputated below the knee.

It was noted that the brake was positioned for the left foot and not the right foot as participants would be used to; and the go-kart was a racing kart that did not have any onboard safety protection such as seatbelts or rollover protection, as is prescribed for go-karts used at recreational go-karting facilities.

The Church and Mr Holman denied liability for Ms Dixon’s injuries on the basis that go-karting was a dangerous recreational activity and the risk of harm was an obvious risk of that activity, that there had been warning given to her of the risks of go-karting as a recreational activity, and that a duty to warn of the risk was not owed to her as go-karting was an obvious risk.

While Judge Schoombee noted that ‘the fact Ms Dixon accidentally stepped on the accelerator was an important part of the real cause of the accident’, the defendants had not adequately thought through all the potential risks and taken all reasonable steps to ensure the go-karting activity was safe with the risk of injury minimised. For example, they had failed to conduct a proper risk assessment, failed to provide proper instructions and failed to place barriers around the outside perimeter of the track.

Her Honour held that go-karting was not a ‘dangerous recreational activity’ and Ms Dixon’s injury was not caused by an ‘obvious risk’ within the meaning of section 5F of the Civil Liability Act 2002, meaning that the defendants were unable to gain protection from section 5H of the Act and not be liable for her injuries.

Her Honour did not find that Ms Dixon was guilty of any contributory negligence and noted it was to be expected that a reasonable person in her position might have made the same mistake of pressing the accelerator instead of the brake.

This case highlights the importance of undertaking a thorough risk assessment. The lessons arising from the case can be best found in Her Honour’s statement that ‘with a bit of luck, the whole event would have proceeded without any major incident. But where one undertakes the responsibility to allow ordinary members of society who do not have the knowledge or the skills to operate a racing go-kart to partake in an activity which does pose risks of injury, the duty arises to think through carefully what all potential risks are and take reasonable steps to make sure that the activity is safe and the risk of injury minimised’.

Dixon v Apostolic Church Australia Ltd [2017] WADC 88

Tort of battery

Problems arising out of inconsistent evidence

The District Court has dismissed claims for aggravated and exemplary damages by a wife and husband against their neighbour arising out of allegations of assault, battery and trespass to land. The neighbour’s counterclaim for damages for battery has also been dismissed.

The bitter relationship between the Heugh and Knight families took a turn for the worse in February 2016. Complaints about noise and late night basketball games accelerated to name calling, swearing, parking cars on each other’s lawns and eventually resulted in threats and physical confrontation.

Mr and Mrs Heugh allegedly suffered bruising and lacerations when Mr Knight trespassed on their property. Mr Knight denied the allegations of assault and trespass and claimed damages arising out of one of the incidents.

The case turned on its facts. Judge Stone noted that the evidence of Mr and Mrs Heugh was exaggerated, implausible and inconsistent, but that Mr Knight contradicted the only witness whose evidence was given any weight, Mrs Knight, and provided artificial and implausible explanations.

All of the evidence tendered was deemed inconsistent except for that of Mrs Knight, who was not a party to the proceedings. His Honour found inconsistency between police statements, affidavits made in support of applications for violence restraining orders and the evidence tendered by the witnesses. All claims were dismissed.

This decision illustrates the problems that can arise out of inconsistencies in the evidence. While His Honour provided a useful explanation of the legal principles for the torts of assault, battery and trespass, he was not persuaded that any party to the proceedings had established their claim on the balance of probabilities so did not have the opportunity to apply the legal principles to this case.

Heugh v Knight [2017] WADC 84

These articles were written with the assistance of, Law Graduate.


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