Welcome to the June 2013 issue of the Edwards Michael Lawyers eBulletin.

Goudappel  Not Yet Final

On 23 May 2013 an application for Special Leave was filed in the High Court from the Court of Appeal decision in Goudappel v ADCO Constructions Pty Limited [2013] NSWCA 94.

It is likely the application will be listed in September or shortly thereafter.

Court of Appeal Considers Definition of “Employer” for Purposes of Hearing Loss Claims

In Lennon v. TNT Australia Pty Limited [2013] NSWCA 77, the Court of Appeal considered the question of liability for a hearing loss claim in circumstances where an employer changed its workers compensation insurance from the State to the Commonwealth scheme.

The worker remained employed by the same employer at all material times, however his notice of hearing loss injury was not given until after the Commonwealth licence had commenced.

In the Workers Compensation Commission, Keating P. determined that the worker had one continuous period of physical employment, and therefore the deemed date of injury was within the period of the Commonwealth licence.

The Court of Appeal disagreed, finding that that the definition of “employer” in Section 17 should be read as the last employer to whom the State legislation applies: –

“Because TNT was, from 1 July 2008, no longer an employer to whom the obligations of the Act attached, the Applicant thereafter did not have an employer for the purposes of the Act. Accordingly, applying the reasoning in those authorities, TNT was liable, not as the worker’s employer at the time of giving notice, but as the last employer by whom the worker was employed in relevant employment, before he or she gave notice.”

The Court therefore held that the injury was deemed to occur on the last date of employment before the Commonwealth licence commenced.

Permanent Impairment Claims – Separate Assessments

The Court of Appeal has considered the question of whether Section 322(4) of the 1998 Act precludes permanent impairment assessments where one of several body parts may not yet have stabilised.

Section 322(4) provides that an Approved Medical Specialist may decline to make an assessment of the degree of permanent impairment until the Approved Medical Specialist is satisfied that the impairment is permanent and that the degree of permanent impairment is fully ascertainable.

In Galluzzo v. Little [2013] NSWCA 116, the Court considered an Appeal arising from a decision to assess permanent impairment of a worker’s right knee and spine but to defer assessment of the left knee which had not yet stabilised.

The Medical Appeal Panel had determined as follows: –

“There is no reason why a worker cannot be paid compensation in respect of impairments that have stabilised and at a later time be paid additional compensation for other impairments which have not yet been stabilised. As the Respondent points out, the Combining tables are available to assess the total impairment when the additional impairments have stabilised. There is no reason why an injured worker should be kept out of his entitlement to compensation for body parts that have stabilised. This is particularly so when such delay cannot be compensated with an award of interest.”

An application to the Supreme Court for Judicial Review by the employer was unsuccessful.

The Court of Appeal agreed that the employer’s position could not be sustained: –

“The discretionary nature of Section 322(4) is seen to be even more pronounced when it is remembered that the system of quantification involving AMA5 and the Combined Values Chart expressly contemplates a continuing process under which a degree (or percentage) originally struck by reference to one impairment may be revised and updated as and when other impairments having the same ultimate source become ripe for evaluation in degree (or percentage) terms.”

The 2012 reforms sought to overcome the ongoing nature of permanent impairment assessments, although the position in relation to claims where a claim of any kind was made before 19 June 2012 remains uncertain given the High Court Special Leave application in Goudappel.

Driver Breaches Duty of Care but Substantial Contributory Negligence of Pedestrians

In Scott v Williamson:Picken v Williamson [2013] NSWCA 124 the Court of Appeal considered an appeal from a District Court judgment in favour of 2 Defendants in claims brought by 2 pedestrians.

The pedestrians suffered injuries after climbing over a fence on a median strip which was partially obscured by vegetation, in order to reach a minibus which had parked in an emergency lane. One of the pedestrians had lifted the other over the fence and they were proceeding across the roadway when they were struck by the motor vehicle.

The pedestrians sued both the driver of the motor vehicle and the owner/driver of the minibus.

In the District Court, it was held that neither Defendant was liable. The Court of Appeal disagreed in relation to the finding against the driver of the vehicle. The Court held that the driver would have seen the pedestrians in sufficient time to stop had he been keeping a proper lookout.

The Court did not consider that the owner/driver of the minibus was liable by virtue of ss5F and 5H of the Civil Liability Act 2002 and the fact that the risk of the injury was obvious. It was therefore found that the owner/driver of the minibus did not have a duty to warn that there was a risk of harm if they proceeded to cross the road.

However, the Court declined to disturb the Trial Judge’s finding that one of the pedestrians was contributorily negligent to the extent of 65% and the other to the extent of 30%. The larger percentage was found against the pedestrian who lifted the other over the fence with his back facing the direction of the traffic and failed to look a second time to ascertain whether it was safe to proceed across the road.

Motor Vehicle Claims: “Driving” a Motor Vehicle

Claims may be brought under the Motor Accidents Compensation Act 1999 if death or injury is a result of and is caused during:

(a)        The driving of the vehicle, or

(b)        A collision, or action taken to avoid a collision, with the vehicle, or

(c)        The vehicle’s running out of control, or

(d)        A dangerous situation caused by the driving of the vehicle, a collision or action taken to avoid a collision with the vehicle, or the vehicle’s running out of control.

In RG and KM Whitehead Pty Limited v. Lowe [2013], the Court of Appeal considered whether injuries resulting from circumstances where a front end loader was operating as a timber chipper were sustained when the Plaintiff was “driving” the vehicle. At the time of the injury the front end loader was stationary. The injuries were sustained when the Plaintiff’s employer directed him to attempt to align a chute with a sleeve using a sledgehammer.

Barrett JA stated: –

“The “driving” of a motor vehicle does not end or become suspended when the vehicle stops at a traffic light or pauses at a toll gate…in those circumstances the driver maintains control of the vehicle for the purpose proceeding when the temporary interruption ends. The characterisation is different when…the stopping is so that some aspect of the vehicle’s structure unrelated to its locomotive and transporting functions may be deployed by the driver.”

The Court accepted that there was a clear distinction between the actual driving of the vehicle in the sense of locomotion and other operations involving the vehicle which were independent of the function of driving. The Court accepted that driving involved actual control and management of the vehicle while it is moving.

The Court overturned the finding that the Plaintiff’s injuries were sustained during the “driving” of the vehicle.

Pedestrian Contributory Negligence

Karel Kucera sustained injuries when she was struck by a motorcycle at the intersection of Elizabeth Street and Market Street in the city. The evidence disclosed that she had commenced crossing the road after the pedestrian lights had started to flash red, that she had then returned to retrieve her shoe, and that when she realised the danger of her predicament she attempted to return to her starting position and was struck by the motorcycle.

The Trial Judge found that the motorcyclist had breached his duty of care on the basis that he was travelling at an excessive speed and was not keeping a proper lookout, however he deducted 20% for the Plaintiff’s contributory negligence.

The Court of Appeal considered that the finding of contributory negligence was inadequate in circumstances where the Plaintiff commenced crossing against a flashing red light, she was hurrying, and she failed to seek the safety of the median strip. The finding of contributory negligence was therefore increased to 40%.

Work Capacity Decisions: Food for Thought?

The 2012 reforms provide that the WCC does not have jurisdiction to determine disputes in relation to Work Capacity Decisions.

However, s.43(2) specifically provides that a decision to dispute liability for weekly payments of compensation is not a Work Capacity Decision.

It may therefore be arguable that a decision to reduce payments of weekly compensation to $Nil pursuant to a Work Capacity Assessment is not a Work Capacity Decision and may be challenged in the WCC.