workcover case review 2015 rja

WorkCover Case Review [2015]

Rohan Armstrong, Barrister at Law, Townsville

Australian Lawyers Alliance QLD State Conference 13 February 2016

Contents

Seeking damages unfettered by the Civil Liability Act 2003 ................................ 1

Limitation of Actions Act 1974 - s.31 cases ................................................................. 3

“Pure” psychiatric injury claims .................................................................................... 6

Nursing and carer claims .............................................................................................. 10

Other back injuries ......................................................................................................... 12

Lower limb injuries ......................................................................................................... 13

Upper limb injuries ......................................................................................................... 17

Criminal assaults on workers ...................................................................................... 19

Application for compensation ..................................................................................... 20

Notice of Claim for Damages ........................................................................................ 20

Judicial review of Tribunal decision ......................................................................... 21

Binding nature of Tribunal decision ......................................................................... 21

Decision of self insurer binding .................................................................................. 22

Practice and procedure – pleadings .......................................................................... 22

Practice and procedure – medical examinations, disclosure and inspection of worksite ......................................................................................................................... 24

Seeking damages unfettered by the Civil Liability Act 2003

1. Ballandis v Swebbs & Anor [2015] QCA 76 Fraser and Gotterson and Morrison

JJA 05/05/2015

The Plaintiff passenger in an MVA-CTP case argued that this was not merely a

journey claim under s.35 of the Workers’ Compensation and Rehabilitation Act 2003

(WCRA), but he was injured during the course of his employment as that the vehicle

driven home by a co-worker was a workplace. The argument, if successful, would

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allow recovery of general damages and care damages unfettered by the CLA.1 The

argument was rejected, holding the CLA applied to the assessment of damages.2

Per Morrison JA:

[22] A vehicle used to drive home after work, even if it is provided by the

employer, would not be “premises” or “works”, nor would it readily fit within

“place”, which seems to refer to a location. It might be “plant” but that

contention confronts the requirement for “control or management” by the

employer, which was absent here. Similarly, it confronts the additional

requirement, “in ... or in connection with which the worker was working when

the worker sustained the injury”. Mr Ballandis was not working when he

sustained the injury.

2. Farnham v Pruden & RACQ Insurance Limited [2015] QDC 141 Dorney QC

DCJ 03/06/2015

This case followed closely the arguments raised in Ballandis v Swebbs & Anor [2015]

QCA 76, but the facts were a little different. The decisions in Ballandis, Newberry v

Suncorp Metway Insurance Limited3 and King v Parsons & Suncorp Metway

Insurance Ltd4 were cited.

The Plaintiff in an MVA-CTP case argued that this was not merely a journey claim

under s.35 of the WCRA, but she was injured during the course of her employment.

The argument, if successful, would allow recovery of damages unfettered by the

CLA.5

In this case, the plaintiff argued that she had “logged on” to the employer’s computer

network at home and she was paid for her travel from home to work. She was in the

course of travelling from her home to her first work visitation when the accident

occurred.

The defendant argued that the home did not cease to have that character; she made no

claim for a home office in her tax returns and her claim for workers’ compensation

was in fact made under s.35 of the WCRA.

However, the case turned on the defendant’s further argument that if s.35 did not

apply, then the plaintiff would have to satisfy s.32 that the employment was a

significant contributing factor in respect of the injury. Section 32 was not satisfied

“because her work was coincidental, there being no alleged breach of duty, or

breaches of duties, by the employer.”

The court held the CLA applied to the assessment of damages.

1 S.5 (1) Civil Liability Act 2003 (CLA) 2 As an aside, care was calculated at $20 per hour, noting in Affleck $18 per hour allowed five years ago.

3 [2006] 1 Qd R 519 4 [2006] 2 Qd R 122 5 S.5 (1) Civil Liability Act 2003 (CLA)

3

Limitation of Actions Act 1974 - s.31 cases

3. Coles Group Limited v Costin [2015] QCA 140 [No. 1] Holmes and Gotterson

JJA and Applegarth J 31/07/2015

Coles appealed against an order granting the applicant an extension of time under s.31

(2) of the Limitation of Actions Act 1974 for a claim arising out of an injury that

occurred in 2005. The sole basis was prejudice to Coles: the other issues for a s.31

application were conceded.

The applicant’s case included an allegation that she had received inadequate training

before the injury.

Per Applegarth J:

[42] The point remains, however, that Coles faces largely vague allegations

about the respects in which Ms Costin’s training was inadequate. With Ms

Costin having been granted an extension of time, Coles is not in a position to

call evidence at trial about what she was told by Mr Prescott, Ms Kelman and

Ms King in relation to manual handling, save for what may be inferred from

the documents about basic training. Those potential witnesses do not have any

recollection of the detail of the training and instruction each of them provided

to the respondent.

…

[70] The identified injustice to Coles can be addressed by Ms Costin providing

a suitably worded undertaking to not prosecute that part of her claim which

relates to the instruction or training provided to her by Coles. If such an

undertaking is provided then the order extending the limitation period should

stand.

4. Coles Group Limited v Costin [2015] QCA 165 [No. 2] Holmes and Gotterson

JJA and Applegarth J 04/09/2015

The applicant provided an undertaking conforming to the invitation by Applegarth J.

Coles argued that the wording of the undertaking was not sufficient. That argument

failed. Coles also argued that a conditional extension is not permitted under s.31 of

the Limitation of Actions Act 1974. This point was accepted, however, Applegarth J

said:

[21] In summary, this Court is not granting an extension of time on conditions.

Instead the action for which she is entitled to an order for an extension of time

in the light of Coles’ evidence about prejudice has been defined. This should

have occurred earlier in the light of the evidence of actual and presumed

prejudice in respect of instruction and training. It has now been done in the

form of an undertaking.

[22] In future cases, it might be done in the form of a draft pleading if the

notice of claim and other communications leave uncertain the breach of duty

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upon which the applicant for an extension of time wishes to pursue, thereby

enabling a court to grant an extension of time, if persuaded to do so, in respect

of that action, being an action which does not occasion the risk of significant

prejudice by reason of the applicant’s delay in commencing proceedings.

5. Dent v Langs Building Supplies Pty Ltd [2015] QSC 368 Burns J 21/12/2015

Application for an extension of time under s.31.

The applicant, a sawyer, alleged that she had suffered a back injury. Her first

symptoms were in 2001.

There was a history of symptoms and exacerbations over the years. In 2011, the

symptoms became acute after she arrived at work and put a backpack on.

On 14 July 2011 the applicant was granted a disability support pension.

Over the next two years, the applicant continued having back pain and consulted

various medical and para medical specialists.

The applicant had an MRI on 22 August 2013 which revealed irregularities including

“a loss of disc height at T11/T12, disc bulges at L4/L5 associated with a disc

protrusion and compression of the L5 nerve root, and a disc bulge at L5/S1 associated

with a disc protrusion and compression of the S1 nerve root.”

The applicant consulted a solicitor on 12 November 2013.

Burns J accepted that “…until she saw Dr Cheung on 14 August 2013, she did not

appreciate the nature and extent of her lower back injury. In particular, it was

submitted that Ms Dent did not understand that her incapacities would be permanent,

that they could not be satisfactorily addressed by surgery or any other treatment, and

that she was for all intents and purposes commercially unemployable. I have no

hesitation in accepting Ms Dent’s evidence in these respects. These were material

facts relating to Ms Dent’s right of action and in respect of which she was unaware

until 14 August 2013.”

However, Burns J held that for s.30 (1)(b) of the Act, these facts were not of a

“decisive character.” They were an enlargement of the facts known from 2011 when

the applicant had last worked and she had since been suffering a loss of between $650

to $740 per week.

Application dismissed.

No appeal has been lodged at the time of preparation of this paper.

6. Hogan v Allen Taylor & Company Ltd [2015] QDC 085 Bowskill QC DCJ

23/04/2015


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There had been a lapse of 13 years between the date of a back injury caused by

working with a machine in 2002 and the date of hearing of the application.

The employer conceded that all relevant elements for s.30 and 31 of the Act had been

made out by the applicant but defended the application on the sole ground that the

employer would be prejudiced if the order was granted.

The employer referred to a number of matters relevant to prejudice. It said that a fair

trial could not be had due to:

1. A lack of evidence identifying the installers of the relevant machine and what

ergonomic considerations were taken into account in the 1990’s when it was

installed.

2. The factory had been closed and demolished after the 2011 floods in Ipswich

and the machine was not available for inspection.

3. Lost paperwork in the floods relevant to the machine and its operating

procedures.

4. Fading of memories of relevant witnesses.

5. The lack of ability to investigate and meet the allegations of the plaintiff’s

expert witness report.

The application was dismissed.


7. Milling v Fraser Coast Regional Council [2015] QDC 291 McGill SC DCJ

23/11/2015


The applicant was a carpenter when he injured his back in discrete incidents in 2009,

2010 and 2011. He returned to full duties after recovery from each event. After

returning to full duties on 27 June 2011, he had “occasional lower back pain until

May 2013, when one night he woke in severe pain with difficulty in moving,

numbness to his left leg and foot drop.”

Spine surgery was undertaken in June 2013 and the applicant returned to full duties in

September 2013. He continued to have a foot drop but continued his employment

with care.

In July 2014, the employer offered the applicant assistance with heavier work. The

applicant “became concerned that he was at risk of being sacked because of the

consequences of the back injury.” He then consulted a solicitor.

A Notice of Claim for Damages was served in December 2014.

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The respondent argued that by the time of the June 2013 surgery the applicant ought

to have appreciated that he ought to consider making a claim. Further, the respondent

argued that “at least from the time the plaintiff returned to work in late 2013 and

realised that there were some difficulties in his doing his job, he ought to have known

that his employment was to some extent at risk and ought to have taken appropriate

advice as to his position, which would have revealed that such a claim would be

worth pursuing. That was shown by the extent of the claim made in 2014.”

Per McGill SC DCJ:

[22] On the basis of what he knew it was reasonable for him to expect that he

would probably be able to continue in his job until he was of retirement age

anyway even if he was aware of some risk to his employment. In these

circumstances, it was reasonable for him not to have sought advice in

relation to his legal position. In addition, if he had sought that advice it is not

at all clear that he had a claim which was worth pursuing. It may be that, if

there was no issue about liability, the applicant may have had a claim worth

pursuing even at that stage, simply because of the risk to his employment,

but in circumstances where liability was likely to be contentious, as it has

proved to be, that factor should also be taken into account, and as a result it

is not clear that at that stage the applicant ought to bring an action on the

right of action in his own interest. It was really only in March 2015, when it

became clear that the respondent no longer regarded him as fit to do the

carpenter’s job, that the risk of losing his job became a probability, and

shortly after that the certainty, of losing his job, so that the claim if

successful would obtain a significant award of economic loss.

Prejudice was not argued.

Application granted.


“Pure” psychiatric injury claims

8. Woolworths Limited v Perrins [2015] QCA 207 Fraser and Gotterson JJA and

McMeekin J 27/10/2015

Appeal against a judgment for $585,152.74 in favour of the plaintiff for pure

psychiatric injury; appeal allowed in full. McMeekin J wrote the lead judgment.

The plaintiff’s case was that, after a rigorous lengthy selection process [and a

previous removal from the program], he had been removed from a management

training program on the day he was to start the course. He also alleged, in his

evidence in chief for the first time that he had been subject to adverse bullying

behaviour from co-workers. As a result, he argued that he had suffered psychiatric

injury.

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The basis for removal from the program was an assessment of his absenteeism over

the previous 12 months (489 hours) that included a period in gaol for driving whilst

disqualified (358 hours). It was determined in accordance with Woolworths policy

that Employees in breach of a policy [that Employees ought not be absent for greater

than 100 hours per annum] would not normally be permitted to enter the programme.

The trial judge noted that the plaintiff had a relevant history including that he:

(a) had been for many years a user of illicit drugs;

(b) had suffered from depression;

(c) and, in particular, had suffered significantly following the death of his

child.

The plaintiff’s credibility was in issue, particularly on the issue of reliability. He had

relapsed into taking drugs.

The plaintiff’s case was that Woolworths was on notice that the plaintiff was a person

vulnerable to psychiatric injury.

There was a factual contest on the issue of disclosure of the past history: the

Woolworths witness not having recollection of the disclosure of relevant past history

allegedly made by the plaintiff.

McMeekin J reviewed the evidence in detail and found that Woolworths was not on

notice of the vulnerability, contrary to the findings of the trial judge. McMeekin J

relied upon Fox v Percy (2003) 214 CLR 118 at 1286 as explained by Kirby J in CSR

Ltd and Anor v Della Maddalena (2006) 224 ALR 1 to justify substituting his own

findings as to credit and factual matters in place of those of the trial judge.

McMeekin J also found that there was no foreseeable risk of injury that Woolworths

was required to guard against.

McMeekin J rejected the pleaded allegations of steps Woolworths ought to have taken

as constituting breaches of duty as an employer.

On the issue of causation, McMeekin J also found that, even if the allegations had

been made out, there was no proof that compliance with the steps would have averted

the risk of psychiatric injury.

9. Palmer & Ors v State of Queensland [2015] QDC 063 McGill SC DCJ

27/03/2015

Four claims for pure psychiatric injury heard together. Damages were assessed at

$686,000, $411,000, $776,000 and $467,000. The trial took 12 days.

6 "If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must

stand unless it can be shown that the trial judge 'has failed to use or has palpably misused his advantage' or has

acted on evidence which was 'inconsistent with facts incontrovertibly established by the evidence' or which was

'glaringly improbable'.”

8

The plaintiffs complained about the workplace behaviour of certain administrative

and managerial staff at the Maryborough Office of Disability Services Queensland.

There were numerous dispute complaints and a union dispute including picketing.

There were cross allegations. There were also complaints that the employer had

delayed in resolving complaints or providing details of allegations made against one

or other of the plaintiffs.

Judge McGill rejected each of the plaintiff’s claims, finding that the employer was not

vicariously liable for the complained-against employees’ alleged behaviour and that

the employer did not breach its duty to the plaintiffs.

Judgment for the defendant.

Notices of appeal to the Court of Appeal were filed by the plaintiffs on 24 April 2015.

10. Lee & Swindles v State of Queensland [2015] QDC 083 McGill SC DCJ

16/04/2015

Two claims for pure psychiatric injury heard together. Damages were assessed at

$176,000 and $189,000. The trial took 9 days.

The plaintiffs were employed as a teacher and groundsman at a state school. They

developed a personal relationship and became a couple.

In 2006, a sexually suggestive letter was left under the windscreen wiper of Ms Lee’s

car at the school. No-one was identified as the culprit, although the detail in the letter

suggested someone with detailed knowledge of the family.

The principal of the school was notified. The principal informed the plaintiffs that

anonymous calls had been received by the school accusing the plaintiffs of engaging

in sexual activity at the school premises. The principal informed the plaintiffs that he

was “to keep an eye on them.”

There were other prank calls and vandalism of the plaintiff’s car.

Ms Lee became upset by these events and went on worker’s compensation. Mr

Swindles was prescribed anti-depressants.

An investigation ensued and it appeared that the female plaintiff had disclosed the

contents of the letter to other school staff.

However, by 2008, neither plaintiff was experiencing further problems from these

events.

Ms Lee’s father passed away in 2008 and while on extended leave, the plaintiff

became aware that the husband of a teacher had published a book about the school.

The author’s wife put up a flyer about the book on a notice board in the staff room of

the school.

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Judge McGill said, “Ms Lee said that she found the contents quite upsetting, because

the book described an affair between a teacher and the groundsman at the school

where it was set. The book implies that the characters were having sexual intercourse

while at the school….”

Ms Lee also saw a connection to the letter of 2006.

Mr Swindles was “horrified by the book as it brought back memories of the 2006

events.”

The plaintiffs’ relationship deteriorated. Ms Lee became depressed and had suicidal

thoughts. The judge found that Ms Lee’s behaviour was theatrical.

In January 2010, when Ms Lee was due to recommence employment, there was a

letterbox drop of a leaflet referring to the book and specifically nominating Ms Lee

and the current groundsman as the characters in the book previously published. A

police investigation followed. Ms Lee later returned to work.

Ms Lee became angry alleging a lack of support by the school. Later, there was a

dispute between the school, Mr Swindles and Ms Lee concerning a decision by the

principal to change Mr Swindles’ lunch break time. Mr Swindles alleged it was for

the purpose of preventing contact between Ms Lee and Mr Swindles.

Judge McGill was concerned about the reliability of Ms Lee’s evidence, finding that

her recollection of events was coloured by how she interpreted events, particularly

where she felt she was under attack.

Mr Swindles was found to be evasive and he changed his evidence in the witness box.

Judge McGill said:

[74] The plaintiff’s case was based on the proposition that the defendant, by

permitting or acquiescing in the advertising of the book at the school, had

breached its duty to take reasonable care to avoid causing psychiatric injury to

the plaintiff. On the evidence this was limited to the fact that the author’s wife

was not prevented from putting up a flyer in the staff room at the school, and

from talking about the book and inviting, apparently orally, various staff

members to attend the launch of the book. It is not apparent to me that the

defendant had any meaningful control over the author’s wife talking about the

book or inviting other members of the staff to the book launch, even if the

defendant had wanted to do so, but I accept the defendant had the capacity to

control whether or not the flyer was stuck up in the staff room. That therefore

depends on whether in the circumstances it was reasonably foreseeable that

allowing the flyer to be stuck up in the staff room gave rise to a risk of

psychiatric injury to the plaintiff.

Judge McGill rejected each of the plaintiff’s claims, finding that the employer was not

vicariously liable for the complained-against employees’ alleged behaviour and that

the employer did not breach its duty to the plaintiffs.

10



11. Eaton v TriCare (Country) Pty Ltd [2015] QDC 173 Devereaux SC DCJ

25/06/2015

This was a claim for pure psychiatric injury. Damages were assessed at $435,000.

The trial took 8 days.

The plaintiff was employed as an administration assistant at a nursing home. She

developed a serious psychiatric condition over a period of time. There were many

causes including overwork and rude, obnoxious and manipulative behaviour by a

manager towards the plaintiff and other staff.

Devereaux SC DCJ did not accept all the complaints but accepted the plaintiff’s

complaints to a degree; that the plaintiff’s workload had been heavy and that the

manager’s behaviour towards the plaintiff had been unreasonable. It was also

accepted that the workload and the manager’s behaviour had caused the psychiatric

injury.

However, the claim failed “because the relevant duty was not engaged by the

reasonable foreseeability of psychiatric injury to the plaintiff.” Further, the plaintiff

failed to prove that there had been any breach of duty on the part of the defendant:

there was evidence led of systems in place to guard against a breach of duty.

The plaintiff also claimed that the conduct of the manager was intentional7 and that

the defendant was vicariously liable for it.8 However, on this argument it was held

that “Nationwide News P/L v Naidu does not support the plaintiff’s vicarious liability

pleading and argument.”


An appeal to the Court of Appeal was filed by the plaintiff on 22 July 2015.

Nursing and carer claims

12. Downes v Affinity Health Pty Ltd [2015] QDC 197 Long SC DCJ 12/08/2015

The plaintiff claimed damages for a back injury suffered during the course of

employment as a nurse while manually handling a frail 41kg patient who had recent

surgery. Damages were assessed at $183,000 clear of the WorkCover refund.

The plaintiff gave various inconsistent out of court versions of the incident. A co-

worker gave evidence that was inconsistent with out of court versions of the incident.

7 “…[she] deliberately conducted herself in a way that would amount to workplace harassment.” 8 Nationwide News v Naidu [2009] NSWCA 377

11

Long SC DCJ found that the witnesses were not dishonest but unreliable as to the

circumstances of the incident.

Long SC DCJ said:

[58] “… there is a particular difficulty in the failure of the plaintiff to establish

any more precise circumstances of that manual handling, let alone any precise

mechanism of injury, in that this serves to deny her attempt to prove that her

injury was caused by any breach of duty in respect of her particular manual

handling techniques or in the setup of the patient’s bed.

However, in the judgment at [104], the judge said:

“…As was implicitly conceded by Nurse Billman, some risk of injury was

foreseeable. Clearly the defendant could have taken steps to further minimise that

risk and the failure to do so, by way of specific notation, for the benefit of the

nursing staff, such as the plaintiff, of the information expressly gathered in the

pre-admission and admission processes and therefore the need for heightened

vigilance in the care of this patient, was largely unexplained and in the

circumstances and more likely than not, unreasonable.

However, the plaintiff’s claim failed because it could not be shown that the breach

was causative of injury.


An appeal to the Court of Appeal was filed by the plaintiff on 8 September 2015.

13. Bird v Uniting Church in Australia Property Trust (Q) [2015] QDC 243 Long

SC DCJ 02/10/2015

The plaintiff claimed damages for a shoulder and neck injury suffered during the

course of employment as a respite carer while manually assisting a male patient to get

up to go to the bathroom. Damages were assessed at $12,915 clear of the WorkCover

refund.

The plaintiff had significant relevant pre-existing physical conditions of which the

defendant employer was aware.

The plaintiff’s main case rested upon an allegation that an assessment of the patient as

a high risk patient had not been placed upon the relevant file in order to put the

plaintiff on notice of the special measures to be taken when assisting with mobility.

However, the evidence was that the plaintiff had made notes in the defendant’s care

records prior to the incident recording the difficulties posed by assisting to mobilise

the patient.

The plaintiff was found to be unimpressive as a witness. Her evidence of the injury

was in direct conflict with the evidence of a GP consulted by the plaintiff after the

alleged injury where the GP’s notes stated that the injury followed a “heavy cleaning

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job.” The GP’s evidence was that if an incident had been reported by the plaintiff to

her, such as a respite care patient pulling down on her shoulder, then the GP would be

looking for an acute injury, such as a rotator cuff tear.

The plaintiff’s claim that she suffered injury was rejected.



Other back injuries

14. Knott v The Withcott Hotel [2015] QDC 314 Bowskill QC DCJ 10/12/2015

The plaintiff claimed damages in respect of a thoracic spine injury and psychiatric

injury suffered during the course of her employment as a cook. Damages were

assessed at $219,000.

The plaintiff’s case was that she had suffered the thoracic injury as a result of her

work tasks as a cook. The statement of claim set out in minute detail all the work

tasks the plaintiff did as a cook, which included lifting various items and activities

involved in food preparation.

The plaintiff did not allege any particular incident caused an injury but that she felt

pain in her upper back and left shoulder after working for about ½ to 1 hour on 25

March 2011. She reported it that day to her GP, whose record was consistent with the

evidence.

The reasons for judgment records:

[27] As to what actually transpired on 25 March 2011, the plaintiff’s evidence

was: “Say about 11 o’clock, I was standing at the bench, and I remember

leaning over on – because I was in pain.” She elaborated that she “just had

pain up in here [pointing to her upper back] … and in my shoulder along there

[pointing to her left side]”. She said the pain was “really bad”. She

continued working until 1.30pm.

Judge Bowskill said that “the risk of injury from lifting and carrying heavy products

in the process of putting away deliveries was foreseeable, and not insignificant, and

there were precautions that a reasonable person in the position of the defendant could

have taken, to reduce the risk of injury, which would not be burdensome and would

not impede the accomplishment of the work.”

However, Judge Bowskill was not satisfied that there was a causal connection

between the onset of pain and the lifting, carrying and putting away of heavy

products:9

9 Citing Stitz v Manpower Services Australia Pty Ltd [2011] QSC 268

13

[156] I am not satisfied that the facts as proved are sufficiently compelling to

warrant an inference of causation being drawn. In so far as I have concluded

there were “defects” in the system of work involved in putting deliveries

away, it is not clear that the injury arose out of the defective system of work,

in the sense of being caused by it. It cannot be said in this case that the facts

warrant no other inference inconsistent with liability on the part of the

defendant (see Stitz at [109]). In circumstances where the plaintiff was simply

carrying out her usual duties; which she had not had any difficulty with

before; and which neither she nor anyone else had complained of before; and

where there was no particular incident that occurred on this day, there is a

clear inference available that the plaintiff’s pain, which became noticeable to

her after being at work for a short time, was caused by some other means,

either unrelated to her work, or related to some aspect of her work in respect

of which no negligence has been established.



Lower limb injuries

15. Thomas v Trades and Labour Hire Pty Ltd & Anor [2015] QSC 264 Burns J

08/09/2015

The plaintiff, a tip truck driver, was injured when the tailgate of the truck he was

operating fell on his foot. Damages were assessed at $485,000 against the employer

and $630,000 against the Council.

One of the hinge pins on the tailgate broke when the plaintiff was tipping a load of

broken concrete. The plaintiff’s evidence at trial differed from four out of court

statements that he made where he stated that he had pushed the tailgate before it fell

on his foot.

Burns J found that the tailgate fell in this way:

[41] For the above reasons I find that, when Mr Thomas walked to the rear of

the truck to view the damage, the tailgate was hanging from the latch on the

driver’s side of the tray. No part of it was resting on the ground. Instead, the

tailgate was hanging at an angle to the ground with its only point of

attachment to the tray being the latch at the top of the tailgate on the driver’s

side of the truck. I find that Mr Thomas took up a position behind the truck,

and most likely close to the driver’s side of the vehicle. He then pushed the

bottom corner of the tailgate on the driver’s side of the truck in an attempt to

either push it back into position or slide it onto the tray so that, if successful,

he could then drive back to the Council workshop for the assessment and

repair of the tailgate. I find that Mr Thomas pushed the tailgate deliberately,

and with that purpose in mind.

14

Burns J accepted the evidence of Dr Grigg that the hinge pin had a manufacturing

defect in it that occurred prior to the second defendant’s acquisition of the truck. The

defect was not plainly visible and was not detectable unless a person was specifically

looking for the defect.

Burns J went on to find that the push applied by Mr Thomas was the disturbing force

which caused the tailgate to dislodge and fall on his left foot.

The plaintiff agreed that he “required no directions or instructions not to touch, push

or approach the tailgate when it was so obviously damaged. He agreed that it would

be a “stupid and reckless thing to touch the tailgate and push it” in those

circumstances….In particular, Mr Thomas accepted that it would be “silly and

reckless to get in a position where” the tailgate could fall on him.”

Burns J further found that Mr Thomas knew that he ought to have swung the tailgate

completely out of the way before he made any attempt to discharge the relevant load

[of large pieces of broken concrete]. He also knew that he was not to approach such

obviously damaged equipment as the tailgate but, to instead report the damage to the

Council.

Judgment was entered for the defendant.

An appeal to the Court of Appeal was filed by the plaintiff on 6 October 2015.

16. Kennedy v Queensland Alumina Limited [2015] QSC 317 McMeekin J

18/11/2015

The plaintiff suffered a foot injury when caustic soda came into contact with it. The

plaintiff opened a pipe carrying the caustic without isolating the pipe effectively. The

employer admitted liability but the plaintiff’s damages were reduced by 50% for

contributory negligence.

The plaintiff was found to have been adequately trained and failed to follow his

instructions in proving isolation of the system.

Gross damages assessed were $486,613 before reductions for contributory negligence

and the WorkCover refund reduced the award to $191,061.

An appeal to the Court of Appeal was filed by the plaintiff on 16 December 2015.

17. Scott v Jackson Garden Landscape Supplies Pty Ltd [2015] QDC 018 Andrews

SC DCJ 17/02/2015

Slip and fall at work – fractured femur. The plaintiff’s counsel conceded that the

cleaning system was adequate but that the defendant failed to observe it. The

outcome turned upon credit of the witnesses called for the defendant.

The court was satisfied that the area had been cleaned by 9am and the plaintiff slipped

and fell at 1020am.

15

The court was not satisfied that the employer had breached its duty of care.

Judgment for the defendant. Damages were not assessed.


18. Stark v Toll North Pty Ltd [2015] QDC 156 Bowskill QC DCJ 19/06/2015

The plaintiff was struck by a forklift at work and claimed more than $700,000

damages for injuries to the ankle, back and psychiatric injuries. Liability was

admitted. Damages were assessed at $60,000.

Per Bowskill QC DCJ:

[17] What I have found, upon a close and careful analysis of the whole of the

evidence, is that in many respects I cannot accept what the plaintiff says,

because of the inconsistencies between his evidence, and what appears in

contemporaneous records made by the large number of medical practitioners

he has seen over the last almost 3 and a half years (and indeed inconsistencies

as between those medical practitioners, in terms of what they have recorded

the plaintiff as telling them). The plaintiff’s evidence simply does not

withstand that close scrutiny.

…

[254] … I am reluctant to expressly find that he is and was being deliberately

dishonest; but in any event, my careful analysis of the evidence leads me to

the view that I am unable to accept much of the plaintiff’s evidence. I find

that by September 2012 the plaintiff no longer suffered from a mental disorder

which was causally related to the workplace injury he sustained on 3 January

2012.

Judgment for the plaintiff.


19. Prasad v Ingham's Enterprises Pty Ltd [2015] QDC 200 McGill SC DCJ

07/08/2015

The plaintiff claimed damages in respect of plantar fasciitis injury to her feet suffered

over a period of time as a process worker at the chicken factory. Damages were


There was a controversy in the specialist’s opinions as to whether the plaintiff’s

condition was constitutional or work-related. Judge McGill found it was work-

related.

However, the claim failed as no negligence could be shown against the employer and

that it could not be shown that any other precautions that could have been taken

would have led to a different outcome (causation).

16

It was also pleaded that there was an implied term, and breach, of the employment

contract that the defendant comply with the statutory duties prescribed by the

Workplace Health and Safety Act 1995. Judge McGill noted that there was no longer

available a right to breach of statutory duty under that Act and rejected the argument

that such a term was implied into the contract.


An appeal to the Court of Appeal was filed by the plaintiff on 8 September 2015.

20. Rudd v Starbucks Coffee Company (Australia) Pty Ltd [2015] QDC 232

Bowskill QC DCJ 22/09/2015

The plaintiff claimed damages in respect of a knee injury suffered during the course

of her employment as a barista when she had to crouch down to plug in a power cord

underneath a “cold beverage station.” Damages were assessed at $58,000 if the injury

was a subluxation of the patella but only $2,420 if it was only patellofemoral pain.

The plaintiff’s evidence was found to be unreliable, particularly that she failed to

make truthful disclosure of prior knee and back injuries to doctors.

Judge Bowskill rejected the claim based on a dislocation or subluxation of the patella

as claimed but found that the plaintiff did suffer pain as a result of the incident.

Judge Bowskill also found that the risk of injury was insignificant and there was no

requirement for the defendant to do more than it did.



21. Humphries v Downs Earthmoving Pty Ltd & Anor [2015] QDC 323 Bowskill

QC DCJ 11/12/2015

The plaintiff claimed damages in respect of an ankle injury suffered during the course

of his employment as a security guard when he slipped and fell after stepping on a

concrete embankment at 2am on 9 April 2013. Damages were assessed at $14,000.

The plaintiff’s case was that it was dark at the time with no artificial lighting. He was

using a torch to check for intruders but it did not illuminate the embankment.

Judge Bowskill preferred the evidence of the plaintiff’s co-worker Mr Tosi to that of

the plaintiff, finding that:

[106] In terms of the plaintiff’s use of his torch, it follows that I do not accept

his evidence that he was in front of Mr Tosi, being the only one of the two

shining his torch into the windows. It may well be, having regard to the

overall circumstance, particularly as described by Mr Tosi, that the plaintiff

was also shining his torch into the windows, behind Mr Tosi. In any event, it

17

seems probable that the plaintiff was not shining his torch towards the ground,

or more generally in the direction of their travel, illuminating the path in front

of them, and was not keeping a look out for where he was walking –

concentrating instead on looking closely into the windows, behind Mr Tosi.

As to the occupier, Judge Bowskill said:

[181] … in my view, the drain/embankment was either something that a

reasonable occupier would not have foreseen as posing a risk to a person in

the position of the plaintiff or, if it ought to have been foreseen as posing a

risk, it is something that a reasonable occupier would not have thought it

reasonably necessary to guard against injury to such persons.

As to the employer Judge Bowskill said:

[204] In my view, the warning, in those two documents, to “carry your torch”,

“be aware, use caution, watch your footing, torch required” (risk assessment);

“be aware of uneven ground”, “carry your torch, watch your footing slips trips

and falls” (first night briefs), communicated to trained and experienced

security patrol officers, was all that reasonableness required in response to the

risk of injury in this case.

[205] It is more probable than not, in my view, that if the plaintiff was

carrying his torch in such a manner as to illuminate his path of travel, and

watching his footing, he would have been aware of the drain, and not have

fallen.

Judgment for the defendants.


Upper limb injuries

22. Boon v Summs of Qld Pty Ltd t/a Big Bill’s Bobcats [2015] QSC 162 Ann

Lyons J 12/06/2015

The claim arises from an incident on a worksite but the claim is not against the

plaintiff’s own employer. The defendant was the employer of one Summerfeldt.

The trial judge records the factual background to the incident at follows:

[5] The plaintiff alleges that around 2pm Summerfeldt was crouching down

eating an orange and was using a Leatherman knife (the Knife) to cut and peel

the orange. He alleges that as he was walking past Summerfeldt, Summerfeldt

stood up from his crouching position holding the Knife in his hands and,

without intending to do so, stabbed the plaintiff in his left hand.

The plaintiff’s case is that the defendant is vicariously liable for the negligence of

Summerfeldt or directly liable on the basis that Summerfeldt should have been

18

instructed not to use the Knife when he was in close proximity to other workers and

not to use the Knife in an area that was frequently traversed by workers or not to use

the Knife in a designated eating area.

The trial judge found that:

[74] Ultimately, I do not consider that the plaintiff has established, on the

balance of probabilities, that a reasonable person in the position of Tim

Summerfeldt would have foreseen that using a sharp knife, such as the

Leatherman, to peel an orange during lunch would have involved a risk of

injury to a class of persons nearby, which would have included the plaintiff. It

would seem to me that the plaintiff is arguing that, because Summerfeldt had

the Knife in his hand, he is responsible for any injury which occurred to any

person in the vicinity, irrespective of that person’s actions.

As the plaintiff failed to prove negligence against Summerfeldt, the vicarious liability

case against his employer failed.

On the alternative claim directly against the defendant, the trial judge found that:

[81] I consider that the probability of the occurrence of the injury which in

fact occurred was actually low. I am not satisfied that a reasonable employer

in the position of the defendant company would have taken the steps argued

by the plaintiff to avoid the risk of injury. It was not reasonable for the

defendant company to essentially ban knives and sharp items on the Site,

especially when a sharp implement was required to cut the Bio-Tac. Neither

do I consider that it was reasonable or necessary for the defendant company to

warn its workers that knives are sharp and they should not walk near anyone

who has a knife.

An appeal to the Court of Appeal was filed by the plaintiff on 16 June 2015. The

appeal proper has not been determined.

Summs of Qld Pty Ltd v Boon [2015] QCA 174 Fraser JA 21/09/2015 (delivered ex

tempore)

The respondent to the appeal failed in an application for security for costs against the

appellant.

Per Fraser JA:

… It seems to me that the appellant has a very strong argument on appeal that,

in taking that approach, the trial judge misunderstood the case made by the

appellant. The case was not that the use of the knife to peel an orange was

negligent, but rather that the employee of the respondent was negligent in the

course of standing up and accidentally stabbing the appellant in the hand with

the knife.

19

Criminal assaults on workers

23. Baillie v Jackson & Victoria Point Sharks Sporting Club Inc [2015] QDC 031

McGill SC DCJ 20/02/2015

The plaintiff was a security officer employed by the first defendant to work at the

club. A person leaving a wedding reception punched the plaintiff. Damages were


There were inconsistencies in the plaintiff’s evidence regarding the number of people

and the extent of their intoxication, including that of the assailant.

The judge found that there was no basis to hold that a second security guard should

have been employed on the occasion in question.

Judge McGill further said that “…I do not accept that the assailant was displaying

indicia of intoxication to the point where it would have been appropriate to cut off

service of alcohol and ask him to leave prior to the time when in fact he left, and I am

not persuaded there was any negligence on the part of the second defendant in failing

to take that step.”



24. Marshall v GJ & KM Church and Jomik Investments [2015] QDC 248

Bowskill QC DCJ 07/10/2015

The plaintiff claimed damages in respect of injuries caused by a criminal assault

committed by unidentified persons in the carpark of a McDonald’s restaurant. The

plaintiff worked as a contract cleaner at the restaurant. Damages were assessed at

$64,000 which was less than the WorkCover refund of $118,000.

The plaintiff’s evidence was found to be unreliable in that his evidence was evasive

and inconsistent, he failed to make truthful disclosure of prior psychiatric injury to

doctors, and because of his exaggeration of his injuries and the facts generally.

The plaintiff asserted that the incident occurred at 2am but Judge Bowskill found that

there was no work requirement for him to be outside at that time, until after 6am.

The plaintiff asserted that violent behaviour was prevalent at the restaurant premises

but Judge Bowskill rejected that evidence, preferring the evidence of other witnesses

on the point.

Judge Bowskill found that the risk of injury was very low and there was no

requirement for the defendant to do more than it did.



20

Application for compensation

25. Hodgson v Rio Tinto Aluminium Limited [2015] QSC 93 Boddice J 22/04/2015

The Claimant applied for a declaration that he had not made an application for

compensation in respect of an injury in November 2011. He also applied for a

declaration that WorkCover did not make a decision or comply with its obligations

under the WCRA if such an application had been made.

There was no dispute that the claimant had contacted WorkCover on 1 March 2012 by

telephone. The trial judge rejected the claimant’s evidence that the contact was not to

make a claim for compensation.

On the first issue, the court found that the claimant’s detailed telephone contact on 1

March 2012 with WorkCover amounted to an application for compensation under the

WCRA. That initial contact put into train the investigative and assessment process.

WorkCover eventually rejected the claim, although the rejection letter dated 22 May

2012 was issued several days outside of the time limit specified in the WCRA.

The claimant became aware of the rejection letter nearly two years later in March

2014.

The trial judge held that the claimant’s review rights and time period commenced

from that date, but the claimant failed to exercise those rights.

The trial judge left open the possibility that the claimant might make an application

for review out of time.

The application was dismissed.


Notice of Claim for Damages

26. Glasson v Toll Holdings Limited [2015] QDC 204 Samios DCJ 06/08/2015

(delivered ex tempore)

The claimant applied for a declaration that a Notice of Claim for Damages had been

given to the self-insurer complying with s.275 of the WCRA on 22 August 2014.

The claimant, at the time of giving the notice of claim just prior to the three-year time

limit expiration, did not provide tax returns and other documents required by the

WCRA. The respondent notified the applicant after the statute of limitation expired

that the NoC was non-compliant.

The respondent argued that the notice of claim was non-compliant and the claim was

statute-barred.

21

Following Brew v Followmont Transport Pty Ltd10, the application was dismissed as

the NoC was non-compliant.


Judicial review of Tribunal decision

27. Zecevic v Simon Blackwood (Workers' Compensation Regulator) & Anor

[2015] QSC 232 Philip McMurdo J 17/08/2015

The applicant claimed that a disease known as scleroderma11 was the result of his

work as a tiler and a tiler’s labourer from 1995 until 2008. In particular, the applicant

contended that the disease was caused by exposure to respirable silica dust.

There were differing medical opinions as to the cause of the disease generally, and

specifically as it involved the applicant.

The applicant sought judicial review of the decision of the General Medical

Assessment Tribunal finding that the scleroderma was not a consequence of

employment.

The applicant argued that, under s 20(2)(f) of the Judicial Review Act 1991, there was

an absence of evidence or other material to justify the making of the decision.

The court rejected that argument, finding that there was evidence that the Tribunal

was entitled to rely on for its decision, and it was entitled to rely upon its professional

expertise and experience. The Tribunal was not obliged to accept the competing

views of the medical opinions relied upon by the applicant.

The court dismissed the application on the basis that the applicant had not established

any ground for judicial review.


Binding nature of Tribunal decision

28. Henderson v Dexalaw Pty Ltd [2015] QDC 071 Devereaux SC DCJ 31/03/2015


This was an argument as to whether s.515 of the WCRA meant that findings of fact

relating to a claim for a post-concussion syndrome or mild traumatic brain injury that

were rejected by the Neurological/Neurosurgical Assessment Tribunal were binding

for all matters in the proceeding.

10 [2005] Qd R 482 11 An autoimmune condition literally meaning “hard skin.” It affects the skin and can result in systemic sclerosis

affecting other major body organs: Arthritis fact sheet – Arthritis Australia

22

The plaintiff was seeking damages in respect of a psychiatric injury involving similar

symptoms to the rejected injury.

The judge held that s.515 precluded any claim based on an injury that had been

rejected by the Tribunal. “To claim damages for an injury that is simply a symptom

of the injury considered by the Tribunal would be to traverse the decision. Section

515 would also prevent proof of an injury which depends for its existence on the

injury considered by the Tribunal.”

Decision of self insurer binding

29. O’Connor v Toll Holdings Ltd [2015] QSC 259 Applegarth J 01/09/2015

The applicant notified the respondent in accordance with s.186 of the WCRA that the

applicant did not agree with the degree of permanent impairment of a lumbar spine

injury set out in a notice of assessment issued by the respondent. The notification

requested an assessment by Dr Day under s.179.

The respondent initially agreed and arranged for the assessment by Dr Day but then

purported to rescind its decision and instead decided to refer the applicant to the

General Medical Assessment Tribunal.

The court declared that the respondent’s later decision was invalid and the respondent

was bound by its earlier decision to have the applicant assessed by Dr Day. The

respondent failed to repeal its earlier decision within 10 business days after receiving

the applicant’s request as required by s.24AA of the Acts Interpretation Act 1954.

Practice and procedure – pleadings

30. Jetcrete Oz Pty Ltd v Conway & Anor [2015] QCA 272 Fraser JA and

Applegarth and Henry JJ 11/12/2015

The appellant appealed an order granting leave to the plaintiff to amend a statement of

claim where the limitation period had expired. The plaintiff was a worker injured

when his head struck the ceiling of a truck as it went over rocky ground when

descending a mine. The amendments sought to provide further detail of the facts of

the incident, further particulars of negligence as well as to raise breaches of statutory

duty. The appeal was dismissed on the basis that the proposed amendments complied

with UCPR 376 that:

(4) The court may give leave to make an amendment to include a new cause of

action only if—

(a) the court considers it appropriate; and

(b) the new cause of action arises out of the same facts or substantially

the same facts as a cause of action for which relief has already been

claimed in the proceeding by the party applying for leave to make the

amendment.

23

31. James v State of Queensland [2015] QSC 65 Henry J 30/03/2015

Henry J struck out an amended statement of claim which had been filed without leave,

but gave leave to re-plead a fresh amended statement of claim. It was in the context

of a psychiatric injury claim by a paramedic against his employer arising from his

exposure to traumatic injuries suffered by children during his employment. The

amendments were made after the expiration of the relevant statute of limitation.

There were two new pleading issues.

Per Henry J:

[34] The newly pleaded references to the CISD and SOP 47 procedures and

the failure to implement them after the first two incidents do not introduce a

new cause of action. Rather they involve more detailed pleading of the same

pathway to liability already pleaded. Leave to plead them is not required

pursuant to r 376.

[35] What of the pleading of the training episode and that it should have

prompted the initiation of the CISD and SOP 47 procedures? That feature of

the proposed pleading goes beyond merely providing more particulars as to

how there was a failure to provide the system. It raises the training episode, as

distinct from the first two incidents, as a reason why the system should have

been activated. In so doing it founds a different pathway to liability than that

hitherto pleaded. I therefore conclude the pleading of the training episode and

that it should have prompted the initiation of the CISD and SOP 47 procedures

includes a new cause of action and leave was therefore necessary to plead it.

…

[37] ….The training episode and that it should have prompted the initiation of

the CISD and SOP 47 procedures are matters that arise out of substantially the

same facts as the existing cause of action.

32. Smith v Woolworths Limited [2015] QDC 166 Everson DCJ 12/06/2015


An application by the plaintiff to strike out part of a defence was granted with

indemnity costs.

The defence pleaded that an incident pleaded with dates that did not correspond

exactly with a Notice of Assessment of Permanent Impairment for the pleaded injury

did not comply with the WCRA and was statute-barred.

Everson DCJ followed a line of authorities that held that the date stated in the Notice

of Assessment is irrelevant.

24

On the issue of indemnity costs, Everson J held that the pleading was legally

unsustainable leading to unreasonable delay. An order for indemnity costs was made

following Colgate-Palmolive Company v Cussons Pty Ltd12

Practice and procedure – medical examinations, disclosure and inspection of

worksite

33. Askari v AWX Pty Ltd & Anor [2015] QDC 127 Samios DCJ 12/05/2015


Application under UCPR 250 by the plaintiff for an order permitting an inspection by

an engineer retained by the plaintiff of the second defendant’s meatworks where the

injury was alleged to have occurred.

The application was opposed on the basis that it was a fishing expedition.

The applicant plaintiff alleged that he suffered a back injury doing repetitive lifting

and twisting tasks involving removing cattle heads being moved on hooks on a chain

that was in continuous operation.

The applicant argued that it was necessary in the context of the case [for the expert] to

examine the broader context of the whole operation in mind including the timing of

the chain coming to the plaintiff.

Judge Samios held that the inspection was necessary and “there is good reason to

think the applicant would otherwise be prevented from obtaining a just resolution of

the cause or matter unless the order was made.”

Application granted with costs.

34. Teys Australia Meat Group Pty Ltd v Flett [2015] QDC 177 Rackemann DCJ

23/06/2015 (delivered ex tempore)

Application by the self-insurer to have the claimant submit to a further medical

examination by a spine surgeon as to whether surgery would improve the claimant’s

condition and to what extent.

The application was opposed on the basis it was unreasonable or unnecessarily

repetitious.

The self-insurer argued that Dr Winstanley, who had already provided a report, was

no longer undertaking such surgery and it was necessary to obtain an opinion from a

practicing surgeon.

The application was dismissed on the basis that Dr Winstanley still had expertise to

provide an opinion about the surgical options and the likely prognosis for the injuries.

12 (1993) 46 FCR 225 at para 24 “evidence of particular misconduct

that causes loss of time to the Court and to other parties”

25

35. Gilliver-Taylor v Hastings Deering (Australia) Limited [2015] QDC 226

Durward SC DCJ 18/09/2015

The plaintiff’s claim was for soft tissue shoulder injuries caused by “repetitive

workplace tasks involving the compilation, photocopying and binding of thousands of

pieces of paper that constitute a multiplicity of training manuals for use in the

defendant’s mining training and induction business, directed to employees (potential

or actual) of third parties, in a range of occupations.”

The plaintiff applied for an order for disclosure with reference to classes of

documents under UCPR 223 such as IT records, tax invoices/receipts, photocopier

copy count records, offsite data records, training course assessments and training

programme reports.

The defendant argued that it had complied with its disclosure obligation under UCPR

211 but did not argue that the disclosure contended for was unreasonable or

impossible.

An order was made for disclosure of certain classes of documents.

workcover case review 2015 rja

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