Welcome to the March 2017 issue of the Edwards Michael Powell Lawyers eBulletin.

Negligence: No Duty Of Care For Murder Attempt

In Optus Administration Pty Limited v Glenn Wright (by his Tutor James Stewart Wright) [2017] NSWCA 21 the Court of Appeal upheld an appeal from a Supreme Court decision awarding the Plaintiff just under $4 million in damages.

The Plaintiff suffered psychological injury as the result of an unsuccessful attempt by a fellow worker, who had randomly decided to kill someone, to throw him off a balcony.  Both individuals were employed by labour hire companies and were attending the premises of Optus for the purposes of a training course for call centre operators.  The offender had been observed by employees of Optus on the balcony, acting strangely and asking for the Plaintiff, whose presence was procured allowing the unsuccessful attempt to throw him from the balcony to occur.

It was accepted by the trial judge that the degree of control etc exercised by Optus was sufficient to give rise to a relationship analogous to that of an employment relationship.

The liability issues on appeal were mainly concerned with requirements under the Civil Liability Act.

In a majority decision, the Court of Appeal rejected the trial judge’s approach of combining the knowledge of various employees, in particular as to the offender’s behaviour before the worker was presented to the balcony, and attributing that knowledge to Optus in order to establish a duty of care.

The Court did not accept that a violent attack of the kind undertaken was foreseeable. Hoeben JA considered that in order for the Plaintiff to succeed, some specific appreciation of a risk to life was required but no finding to that effect was made.

The majority held that when approaching the issue of vicarious liability, Optus could not be vicariously liable for the conduct of employees who were not themselves negligent.

The appeal was upheld and judgment was entered in favour of Optus.

Section 11A: Causation and Evidence Issues

In Hamad v Q Catering Limited [2017] NSW WCCPD 6 Deputy President Snell allowed an appeal from an Arbitrator’s decision finding that the worker’s injury was wholly or predominantly due to reasonable action by the employer with respect to discipline.

The Deputy President noted that section 11A requires the employer to prove that the relevant psychological injury was “wholly or predominantly” caused by the employer’s action with respect to one of the section 11A factors.

It was observed that this test is different to the test of causation under section 4, which requires an application of the “results from” test in Kooragang Cement Pty Limited v Bates (1994) 35 NSWLR 452.  The causal test in section 11A(1) is “different, and more difficult” than the section 4 test because it requires proof that the injury was “wholly or predominantly caused” by the relevant action.  It was accepted that the employer carried the onus of proof.

The Deputy President adopted previous authority that the meaning of “predominant” in section 11A(1) is “mainly or principally caused”.

The Deputy President concluded…

The need for medical evidence, dealing with the causation issue in section 11A(1) of the 1987 Act, will depend on the facts and circumstances of the individual case.  In the current case, as in most, there are a number of potentially causative factors raised in the Appellant’s Statement and the medical histories.  Proof of whether those factors, which potentially provide a defence under section 11A(1), were the whole or predominant cause of the psychological injury, required medical evidence on that topic.  The extent of any causal contribution, from matters not constituting actions or proposed actions by the Respondent with respect to discipline, could not be resolved on the basis of the Arbitrator’s common knowledge and experience…”.

It was ultimately determined that in the absence of medical evidence dealing with the issue, the employer was unable to discharge its onus of proving that the worker’s psychological injury resulted wholly or predominantly from reasonable action taken or proposed to be taken with respect to discipline.

This decision emphasises the importance of properly preparing a section 11A defence on behalf of an employer.  If there is factual evidence of more than one stressor or trigger event, it is necessary to obtain expert medical evidence that the event carrying the section 11A “reasonable action” factor is wholly or predominantly causative of psychological injury.

Medical Appeal Panel: AMS and Presumption of Regularity

In Avni v VISY Industrial Plastics Pty Limited [2017] NSWWCC MA 21, a Medical Appeal Panel rejected an appeal based principally on alleged errors of the Approved Medical Specialist in relation to procedural fairness and natural justice and failure to provide reasons.

The Medical Appeal Panel decided that there is no requirement under Chapter 7, Part 7 of the 1998 Act for the Approved Medical Specialist to discuss inconsistencies with a worker and endorsed an approach that allowed the Approved Medical Specialist to arrive at his own assessment of permanent impairment, not “having to decide which of two conflicting bodies of evidence he should accept”.

The Appeal Panel also decided that it was not necessary for the Approved Medical Specialist to refer specifically to other measurements, and that on the basis of the presumption of regularity it can be assumed that the AMS would thoroughly read the material before him.

It was also determined that the AMS did not need to provide an extensive or detailed explanation of the criteria applied to reach a professional judgment, endorsing an approach that on the basis of a presumption of regularity it can be assumed that the Approved Medical Specialist performed such tests that might be required to determine relevant factors.

The Medical Assessment Certificate was confirmed.

WPI: Table 4.2 Modifier When No Radiculopathy

In Zenith Workforce Pty Limited v Tsoliaridis [2017] NSWWCC MA 18 the employer sought to argue that an Approved Medical Specialist had wrongly allowed an additional 2% WPI for a second operation when there was no evidence of radiculopathy.

It was agreed between the parties that there was no evidence of radiculopathy post-surgery.

The Appeal Panel accepted a submission that under the SIRA Guidelines of 1 April 2016 some modifiers can be used without radiculopathy, and that the AMS was therefore correct to allow an additional 2% WPI on the basis of a second operation.