Welcome to the December 2010 issue of the Edwards Michael Lawyers eBulletin.

Significant Changes to Workers Compensation Law

On 9 November 2010 the Workers Compensation Legislation Amendment Act 2010 was passed by both houses of parliament and has received Royal Assent. This Act makes a number of significant substantive and procedural changes to the law and is expected to commence on 1 February 2011.

Special Counsel Tim Wardell has prepared an analysis of these changes and their implications.

Click here to read Tim’s analysis.

How to Prepare a Quality Section 74 Notice

As reported in the September 2010 edition, the Presidential Members of the Workers Compensation Commission have issued strong warnings in relation to the need for Dispute Notices to be properly defined, and stated that the Commission will not allow issues to be ventilated unless they have been properly raised in a Section 74 Notice.

In response to this pressing need for properly formed Section 74 Notices, Christopher Michael has prepared a publication outlining the required components of a quality Section 74 Notice, as well as common pitfalls in their preparation.

Click here to read Chris’ Paper, ‘How to Prepare a Quality Section 74 Notice’.

Costs for Multiple Injuries

Recent decisions of the Workers Compensation Commission indicate that costs will generally be awarded where the resolutions relate to separate injuries.

In the June 2010 Edition of the Newsletter we discussed the claims of Harvey v Spotless Services Australia Limited [2009] NSW WCC C53 and Honeyman v Penrith City Council [2010] NSW WCCPD C06 where the Arbitrators allowed claims for separate costs because there were separate injuries.

In Harvey v Spotless Services Australia Limited [2009] NSW WCC C53 Arbitrator Messenger confirmed that an Applicant will not be entitled to an Order pursuant to Clause 9(2)(b) if a period of less than 12 months has elapsed between each successive resolution in respect of the same injury. However, the Arbitrator found that the Applicant did not rely on the same date of injury for each resolution and accordingly ordered that the resolutions were to be treated as separate resolutions for the purpose of the calculation or assessment of costs.

In Honeyman v Penrith City Council [2010] NSW WCCPD C06 the Applicant had brought separate claims with respect to injuries sustained to the right ankle and neck. Both injuries resolved by way of separate Complying Agreements. The Respondent conceded that the Applicant had suffered two separate injuries. Arbitrator McDermott considered that Clause 9 did “not impinge on the Applicant’s rights where there are separate resolutions to separate injuries”.

More recently, the reasoning of Arbitrator McDermott in Honeyman v Penrith City Council was adopted in Meeson v Metal Manufacturers Limited [2010[ NSW WCCPD C028.

In that case the Applicant filed two separate ARDs claiming Section 66 and 67 lump sums under the Table of Disabilities in respect of injuries on different dates to different parts of the body. In both proceedings the Applicant’s solicitors relied upon a single qualified medical report of Dr Searle. It was ordered that the two proceedings be dealt with in the same proceedings.

There was no dispute that the Applicant had received two separate injuries within the meaning in Section 4(WIM).

Arbitrator Baxter considered the Applicant was entitled to recover professional costs separately and cumulatively because there were two injuries.

Employers Vicariously Liable for the Negligence of Others?

The Court of Appeal has recently given a decision which potentially has significant ramifications in relation to the liability of employers who place their employees at the premises of another, under the supervision and control of another requiring them to use that person’s plant and equipment or work under its system of work.

In Galea v Bagtrans Pty Limited (2010) NSWCA 350 a labour hire company provided labour to a trucking company under contract and a worker suffered injury as a result of driving a truck with a defective seat.

The Court of Appeal held that the non-delegable duty of care owed by the employer to the employee rendered it liable not only for its own negligence but also vicariously liable for the negligence of the non-employer tortfeasor. In so finding, the Court applied s.5Q(1) of the Civil Liability Act 2002 which provides:

“The extent of liability in tort of a person (the Defendant) for breach of a non-delegable duty to ensure that reasonable care is taken by a person in the carrying out of any work or task delegated or otherwise entrusted to the person by the Defendant is to be determined as if the liability were the vicarious liability of the Defendant for the negligence of the person in connection with the performance of the work or task.”

It is noted that the words “as if” deem something to be the case which would otherwise not be the case as a matter of law.

The previously accepted concept of the non-delegable duty of care owed by employers was that an employer could not escape liability by claiming that the safety of an employee had been entrusted to some other person and the extent of the duty was to take reasonable steps to ensure that the employee was provided with a safe working environment. The duty was not, however, generally regarded as extending to liability which may arise by reason of the negligence of the person to whom the worker’s safety was entrusted. This position seems to have been negated by s.5Q of the CLA in that an employer would now appear to be liable not only for a breach of its own duty of care to the employee (if any) but also for the negligence of the non-employer tortfeasor.

The consequences of this development are difficult to predict having regard to the wide range of circumstances in which the issue might arise. One possible example is that an employer may become liable for a casual act of negligence by an employee of the non-employer tortfeasor in circumstances where there may have been no steps which could reasonably have been taken by the employer itself to avoid the risk of injury to its employee.

In the case under discussion, the determination that the employer was vicariously liable for the negligence of the non-employer tortfeasor had little practical effect as it was determined, in relation to cross claims for contribution or indemnity, that the damages payable were to be apportioned 15% to the employer and 85% to the non-employer tortfeasor.

It is, however, arguable that if an employer is liable not only for its own breach of duty but also the breach of duty of a non-employer tortfeasor, then the proportionate liability of the employer should be far greater on the basis that both breaches of duty are to be taken to be the liability of the employer.

A further potential difficulty arises in relation to the application of s.5Q by reason of the fact that s.3B(1)(f) of the CLA provides that the CLA does not apply to a “civil liability relating to an award” of damages arising under the Workers Compensation Act 1987. The case under discussion involved a liability for motor accident act damages so this question did not arise. It would, however, be arguable that s.5Q would not apply where the liability of the employer was one giving rise to a claim for Work Injury Damages. This issue may require further clarification by the Court of Appeal in due course.

Christmas Closure

We will be closed from 5:00pm on Thursday, 23 December 2010 until 9:00am on Wednesday, 5 January 2011.

Urgent enquiries should be directed to the Partners by email.

We wish all our readers a happy and safe festive seaso