Welcome to the September 2011 issue of the Edwards Michael Lawyers eBulletin.

Common Law: Section 151Z Apportionment between Occupier and Employer

In Hill and Anor v. Richards [2011] NSW CA 291 the Court of Appeal upheld an appeal by an occupier against a finding of a two thirds apportionment against it in a claim brought by a shearer who slipped on stairs in a shearing shed.

Despite evidence that a co-author of the Workcover publication “Health & Safety at Work – Shearing Guide 2002” had inspected the shearing shed on completion of construction and declared it to be “outstanding”, the Court agreed with the Trial Judge that the occupier was negligent on the basis of failing to install a non-slip strip at the top of the stairs.

The worker’s employer attended the shearing shed on a regular basis, was present at the time of the injury, and controlled the speed at which employees were required to work. It was argued that the Trial Judge’s apportionment of one third liability to the employer was appropriate on the basis that the employer was not responsible for design and construction of the shearing shed, that it was not incumbent upon an employer to alter or require alteration to third party premises, and that a fast pace of work was inherent in shearing operations.

The Court concluded that the risk of injury was as obvious to the employer as it was to the occupier and that it should be accepted that, if requested, the occupier would have placed a non-slip strip at the top of the stairs.

On the basis of the above, the Court amended the apportionment to 50% each to the occupier and employer, resulting in a significant reduction in the Plaintiff’s damages.

This decision highlights the need for employers visiting third party premises to be vigilant and proactive in terms of any deficiencies or dangers in the place of work which might present a foreseeable risk of injury, including requesting safety modifications or improvements from the occupier, in order to minimise potential exposure.

Credit Issues and Oral Evidence

The Court of Appeal has previously determined in Hancock v. East Coast Timber Products Pty Limited [2011] NSW CA 11 that it is preferable for oral evidence to be called in situations where the credit of witnesses is contentious.

In Ayoub v. AMP Bank Limited [2011] NSW CA 263, the Court qualified this principle by endorsing an approach whereby oral evidence should only be necessary where the evidence relates to a fundamental and central issue, declining to find that the failure to call oral evidence was an appellable error in relation to an issue that had no bearing on the reasonableness of an employer’s actions in a Section 11A case.

Presidential Appeals: Procedural Fairness

In McCarthy v. Patrick Stevedores No. 1 Pty Limited [2011] NSW CA 311, the Court of Appeal accepted that there is a continuing obligation to take account of issues as they arise during the course of consideration by Presidential Members, and that if minded to determine proceedings in a particular way, there may be an obligation to hold a formal hearing despite an initial satisfaction that such a course was unnecessary. However, Basten JA stated:

“Where it should have been reasonably apparent to each party that there were conflicts in the evidential material which might need to be resolved, an indication that an oral hearing was not required would constitute a waiver of any such right which might otherwise exist to cross examine the witnesses of the other party. In such circumstances, a Deputy President could generally be satisfied that the appeal could be determined without an oral hearing”.

His Honour concluded that there would still be an obligation to afford procedural fairness if a Presidential Member intended to determine an appeal on a basis which was not raised by the parties and which would not have fallen within their reasonable expectations when indicating that they did not seek an oral hearing.

Section 11A: Reasonableness of Retrenchment Process

In Ayoub (above) the Court of Appeal also endorsed a previous decision of the Court in Manly Pacific International Hotel Pty Limited v Doyle (1999) 19 NSW CCR 181 that four particular matters might demonstrate the reasonableness of a retrenchment process:

  • General circumstances of the employment relationship between the employer and the employee;
  • The suddenness or otherwise of the “fall of the axe”;
  • The period of any notice given; and
  • The existence of counselling or other services provided or available at the time of retrenchment, including consideration of alternative employment.

The Court found that there was no evidence that the worker’s position was such that she ought to have been consulted over the issue of staff reduction. The retrenchment process was therefore held to be reasonable.

Permanent Impairment Claims: Digestive Tract

Given the trend of bringing digestive tract claims to supplement WPI assessments, it is timely to review some of the issues.

Under Chapter 6 of AMA Fifth Edition Guidelines, Table 6-3 applies for Upper Digestive Tract and 6-4 for the Lower Digestive Tract.

Signs and symptoms of disease

In order to make an assessment there must be signs and symptoms of disease and not merely symptoms. Section 6.1, page 118, deals with the principles of assessment. Subsection 6.1a, Interpretations of Symptoms and Signs, states:

“Some impairment classes refer to symptoms that limit the ability to perform daily activities. When this information is subjective and possible to misinterpret, it should not serve as the sole criterion for assigning impairment ratings. Rather, the examiner should obtain objective data about the limitation’s extent and integrate those findings with the subjective data to estimate the degree of permanent impairment.”

Therefore, the examiner is required to obtain objective data of signs as well as subjective symptoms (Rozkowska v Castellorizian Aged Care Services t/as Castellorizian Nursing Home [2011] NSW WCC MA4).

History as to weight

Weight loss is an essential criterion for evaluating the severity and consequences of gastrointestinal disorders. Desirable weight is defined at paragraph 6.1c at page 119. It is important to review history as to any weight loss as this may be a factor differentiating classes of impairment – eg Applicant could not be classed as Class 2 Upper Tract as she had not suffered any weight loss (Subotic v Club Marconi of Bossley Park Social Recreational & Sporting Centre Pty Ltd [2009] NSW WCC MA234); Applicant considered to have maintained his weight at or above desirable weight and weight loss not considered a relevant consideration (Solaja v. Twilight House [2011] NSW WCC MA10).

History as to treatment

A MAC certifying 0% whole person impairment assessment for the Upper Digestive Tract was revoked on appeal on the basis that constipation had not been adequately treated. Paragraph 1.22 of the WorkCover Guidelines provides:

“if the medical assessor considers that treatment has been inadequate and maximum medical improvement has not been achieved, the assessment should be deferred and comment should be made on the value of additional/different treatment and/or rehabilitation”.

The MAP found that the correct conclusion was that the Applicant had not reached maximum medical improvement (Kuwe v. Luxottica Retail [2011] NSW WCC MA1)