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Precedent (Australian Lawyers Alliance) |
PERSONAL INJURY APPELLATE CASES
A YEAR IN REVIEW
By Gerard Mullins and Phil Nolan
Last year appellate courts across Australia, including the High Court, dealt with a broad scope of issues relating to claims for damages for personal injuries, ranging from aviation to occupation, motor vehicles to moving graders, and the circumstances in which a police officer might recover damages following exposure to traumatic events.
AVIATION
Prior to 2019, it was generally accepted, based on the Full Federal Court decision of South Pacific Air Motive Pty Ltd v Magnus (Magnus),[1] that claims for psychiatric injury by non-passengers, or nervous shock claims as a consequence of the death of a passenger, were outside the ambit of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) (CACL) and the corresponding state legislation.
Parkes Shire Council v South West Helicopters Pty Limited[2]
The High Court did not follow Magnus in Parkes Shire Council v South West Helicopters Pty Limited. In this case, the Council engaged South West Helicopters to carry out a weed survey. During the survey the helicopter crashed into power lines, and Council employee, Mr Stephenson, was among those who were killed. Mr Stephenson's widow, daughter and son brought nervous shock claims against both the Council and South West Helicopters. The claims were lodged outside the two-year limitation period prescribed under the CACL. The issue was whether the CACL applied to the family members claims.
The High Court unanimously held, contrary to what was decided in Magnus, that the CACL applied to the family members’ claims – including its cap on damages, strict liability regime and two-year limitation period. As a matter of the ordinary and natural meaning of s35(2) of the CACL, the family members’ claims asserted the civil liability of the carrier in respect of the death of a passenger. There was an immediate and direct relationship between the asserted liability of the carrier and the death of the passenger.
The family members were entitled to claim damages from the carrier pursuant to s28 of the CACL. That entitlement was, by reason of s35(2), exclusive of their entitlement to claim damages for negligence under the law of tort. Indeed, s35(2), by dispensing with the need to prove negligence on the part of the carrier, facilitated the prosecution of those claims. An integral aspect of the scheme was, however, that s34 limited the temporal availability of those claims. The failure to commence the claim within two years meant the claims were time-barred.
POLICE OFFICERS
The year had seen developments in the causes of action that are available to police officers. Prior to 2019, the decisions of Briggs[3] and Hegarty[4] made it difficult for police officers to claim damages for injuries arising from the traumatic events that they were commonly exposed to during service. Those decisions stand for the proposition that an employer should not interfere with an employee’s privacy and individual autonomy by directing, or even suggesting, that a person should seek medical attention if they display signs of psychiatric problems, especially if those problems are having no adverse effect on the employee's performance of his or her duties at work.
Sills v State of New South Wales[5]
Briggs and Hegarty were distinguished in Sills v State of New South Wales. Ms Sills, a police officer, was exposed to a series of traumatic events between 2003 and 2006 in the course of her duties and, as a result, lodged a Workcover claim for post-traumatic stress disorder (PTSD) in 2006. She had a couple of months off work and was subsequently certified fit for her pre-injury duties by her general practitioner. Ms Sills was also examined by the police medical officer (PMO) and police psychologist, both of whom recommended that Ms Sills have cognitive behavioural therapy (CBT) to develop protective strategies to help her manage traumatic stress. Despite those recommendations, Ms Sills was returned to general duties, and was exposed to further traumatic incidents until she was medically discharged from NSW Police in 2012.
Ms Sills alleged that the State of NSW had breached its non-delegable duty to take reasonable care to avoid exposing her to the foreseeable risk of injury, including the risk of psychiatric or psychological injury. She lost at trial, but won on appeal. The Court of Appeal (CA) noted that the considerations of privacy and autonomy, which were at the heart of Briggs and Hegarty, ‘apply with much less force’ where the person’s condition – in this case, PTSD – had actually been diagnosed through medical certification, and two police medical advisers had each made recommendations to the service to address that condition.[6] By the time that Ms Sills was returned to general duties, NSW Police was aware that she was suffering from PTSD and that placing her on general duties was likely to expose her to further traumatic incidents.
AAI Limited v Caffrey[7]
Another notable recent advancement relates to claims by police officers who, in the course of their duties, suffer psychiatric injuries when they rescue others who have suffered injuries.
In AAI Limited v Caffrey, the driver of a motor vehicle crashed into a tree. He had been driving at excessive speed while intoxicated. Mr Caffrey, a police officer, was the first at the scene, and he rendered first aid to the critically injured driver. The driver died soon afterwards and Mr Caffrey had to engage with the driver’s family at the scene. Mr Caffrey developed PTSD as a result of the experience – he sued the driver’s CTP insurer for negligence, and was successful at trial.
The main argument on appeal[8] was whether a person who causes distressing injuries to himself (or someone else) owes a duty of care not to cause pure psychiatric harm to a person who, in the course of his or her occupation, is required to attend events where such distressing injuries will be present. The CA dismissed the appeal. President Sofronoff doubted whether the CA was an appropriate forum for a policy analysis of the common law of tort liability.[9] He cited previous authority to support the proposition that the driver owed a duty to his rescuer.[10]
OCCUPIERS
The liability of occupiers, and in particular principal contractors, has traditionally been a hotly contested issue, particularly in light of the High Court decisions of Stevens[11] and Leighton.[12]
D’Arcy v Caltex Australia Petroleum Pty Ltd[13]
The ACT CA had to consider a similar issue in D’Arcy v Caltex Australia Petroleum Pty Ltd. In that case, Evangelista Pty Ltd held the Crown lease of the subject property and the premises were subleased to Caltex to use as a petrol station. Caltex had sole responsibility for repair and maintenance of the underground fuel tanks, but (for an unknown reason) Evangelista engaged, and paid for, Fuel-Sys Installations Pty Ltd to reline a defective petrol tank underneath the petrol station.
Mr D’Arcy was employed by Fuel-Sys, and he was attending to the repairs to the underground tank when a fire broke out inside the tank. Mr D’Arcy sustained significant burns to his body. At trial, Mr D’Arcy successfully sued Fuel-Sys but was unsuccessful against Caltex.
On appeal there was no real dispute that Caltex, as occupier of the site, still owed a general duty of care to persons entering the site. The real issue was whether that duty extended to employees of a contractor of the landlord to the extent argued by Mr D’Arcy.[14] The CA distinguished Stevens and Leighton. Finding in favour of Caltex, the CA found that it did not need to determine whether Caltex’s failure to receive and examine Fuel-Sys’s safe work method statements (SWMS) amounted to a breach of Caltex’s duty of care as the SWMS had not been shown to be inadequate. The CA also found that a reasonable person in Caltex’s position was not obliged to interrogate a contractor in the position of Fuel-Sys prior to it commencing work, or to supervise the carrying out of its specialised task, in order to protect Fuel-Sys employees from injury.[15]
Osborne Park Commercial Pty Ltd v Miloradovic[16]
In another occupier’s liability case, the WA CA considered whether a store owner owed a duty to a customer collecting the store’s goods where the customer was injured by another vehicle in a common-use accessway.
In Osborne Park Commercial Pty Ltd v Miloradovic, Mr Gallagher was collecting goods from a Harvey Norman warehouse. He was directed to drive down an accessway, and Harvey Norman warehouse staff helped to load the goods he had purchased into the boot of his car. While he was standing behind the boot of his car, another driver reversed his truck and trailer, crushing Mr Gallagher between the two vehicles. The driver of the vehicle was found to be negligent, but so too was Harvey Norman, to the extent of 25 per cent.
Harvey Norman appealed, arguing that it did not owe Mr Gallagher a duty of care because the accessway was controlled by the landlord, and the movement of vehicles in the accessway was outside of Harvey Norman’s control.
In rejecting Harvey Norman’s appeal, the CA found that Harvey Norman had a duty of care to Mr Gallagher due to the supplier and customer relationship: Harvey Norman, unlike its customers, was familiar with the conditions and usage of the accessway. Customers were dependant or reliant on Harvey Norman to provide a safe place to collect bulky goods, and the manner and circumstances of the collection of goods by customers was at the direction and control of Harvey Norman.[17]
INDUSTRY STANDARDS
In 2019, the Full Court of the Supreme Court of SA confirmed the longstanding principle that compliance with industry standards is not the ‘be all and end all’ when it comes to escaping liability in negligence.
Clare & Gilbert Valleys Council v Kruse[18]
In Clare & Gilbert Valleys Council v Kruse, the Council was performing maintenance grading on an unsealed, gravel road, using a road grader. The job required the grader to be driven, from time to time, on the incorrect side of the road (that is, towards any oncoming traffic).
Mr Kruse was driving his vehicle behind a semi-trailer as he approached the grading operations. As the semi-trailer drove from the sealed road surface onto the unsealed road surface it caused a significant cloud of dust to rise from the road, which engulfed Mr Kruse’s vehicle. While the semi-trailer could clearly see that the grader was on the wrong side of the road, and had moved to the centre of the road, Mr Kruse could not see the grader due to the dust. He subsequently collided with the grader and sustained injuries.
Mr Kruse sued the Council. The primary judge held that the Council should have undertaken a proper risk assessment, which would have led to the conclusion that the road surface was such that dust from the road surface presented a foreseeable risk of causing visibility problems for traffic passing the grader; it was foreseeable that vehicles may travel through the graded area reasonably close together. A proper risk assessment would have resulted in better signage. The primary judge, however, reduced the damages award by 50 per cent for contributory negligence. Mr Kruse was travelling between 80 and 100 kilometres per hour, as he was ‘catching up’ to the semi-trailer in front. The primary judge found that Mr Kruse was driving too fast for the conditions and too close to the back of the semi-trailer, thus giving himself little margin for error.[19]
The Council appealed on a number of grounds and was unsuccessful. One of the arguments on appeal was that the Council complied with industry standards. The Full Court held that industry custom and practice can guide, but not determine, whether a person is in breach of a duty of care. However, when the risk of injury is high, the potential effect of injury is serious and the cost of eliminating the risk of injury is small, it is unlikely that industry custom or practice will negate a finding of negligence.[20]
LIFTING
Over the past decade, negligence claims have seen an increase in findings of contributory negligence, particularly in circumstances where a worker is injured while performing an activity that they are very experienced in performing. In 2019, the CAs in Victoria and NSW heard a number of cases that considered whether liability should be apportioned to workers who suffer injuries after lifting heavy items when they have been previously warned about lifting anything heavy.
Aycicek v Flowline Industries Pty Ltd[21]
In the Victorian case, Aycicek v Flowline Industries Pty Ltd, Mr Aycicek suffered spinal injuries at work after lifting, without assistance, a full crate of electrical components weighing approximately 62kg. Following a jury trial , the employer was found to have been negligent, however, damages were reduced by 38 per cent for contributory negligence. The jury found that Mr Aycicek knew there was a system of work in place that required him to seek assistance before lifting something that weighed in excess of 20kgs.
In setting aside the jury’s finding on contributory negligence, the Victorian CA noted that Mr Aycicek did not know what the crate weighed at the time. As to the employer’s contention that Mr Aycicek could have weighed the crate before lifting it, the CA queried how the crate might be weighed without first lifting it and taking it to a set of scales.[22]
The CA also pointed out that Mr Aycicek was merely doing the job that he was required to do; a job that he and others had done many times before in the same manner without complaint by the employer.[23] The CA concluded that the fact Mr Aycicek should have sought assistance from someone else might be best described as mere inadvertence, inattention or misjudgement, which is to be distinguished from contributory negligence.[24]
Williams v Metcash Trading Ltd[25]
Two months later, the NSW CA dealt with a similar issue in Williams v Metcash Trading Ltd. Mr Williams, who was employed by a labour hire company as a packer at a distribution centre operated by Metcash, injured his back when he was bending and turning to stand while lifting two boxes of ‘Chum’ dog food from a 1.4m high rack. The primary judge found that Metcash breached its duty of care to Mr Williams by placing the cartons of dog food at a height of 1.4m instead of 1.8m. The primary judge dismissed the claim on the basis that the breach did not cause the injury. The primary judge also found that had causation been established, Mr Williams would be held guilty of contributory negligence and any damages award would have been reduced by 20 per cent. [26] Mr Williams appealed this finding as well as the causation finding.
The CA overturned the causation finding,[27] and went on to consider the finding on contributory negligence.
When he commenced employment, Mr Williams had been given instructions about manual handling techniques, which included an instruction to lift only one box at a time.[28] Despite this, the primary judge accepted that:
• it was ‘common practice’ among some workers to lift more than one box of heavier items because the workers were subject to a ‘pick rate’, which caused time pressures; and
• the supervisors were not aware that this was a common practice, and if they saw it happen they corrected it.[29]
The CA held (per White JA; Meagher JA and Simpson AJA agreeing) that it was open to the primary judge to conclude that Mr Williams’ conduct went well beyond mere inadvertence, inattention, thoughtlessness or misjudgement. The CA accepted that, despite complaining about the height of the boxes, and nothing being done to rectify it, he had no choice but to pick up the boxes from the 1.4m height. However, he did have the choice to pick up only one box at a time as he had been instructed to do. It was also accepted that Mr Williams felt under pressure to maintain his pick rate, but that did not justify picking up two boxes at a time.[30] Accordingly, the finding of 20 per cent for contributory negligence was upheld.
TRIPS AND SLIPS
The year in review was a significant year for trip and slip cases.
RSL Care Limited v Wallace[31]
In RSL Care Limited v Wallace, Ms Wallace, an aged care worker, injured her ankle in 2008 when she slipped on a shower floor while showering a resident. The shower floor had been installed in 2002. Ms Wallace sued her employer in negligence. The primary judge accepted expert opinion evidence that:
• the flooring product manufacturer’s specifications met the requirements of the relevant Australian standards for minimum slip resistance; and
• when the expert tested the floor in 2013, it did not achieve an adequate degree of slip resistance.
The primary judge found in favour of Ms Wallace.
The employer appealed, arguing that the expert opinion was founded on testing performed in 2013 – more than five years after the accident – and did not provide an adequate basis for the expert’s inference concerning the state of the floor five years earlier.[32]
The employer’s appeal was dismissed. The Queensland CA held that it was open for the primary judge to infer from the deficient state of the floor in 2013 that it was just as deficient in 2008.
Deans v Maryborough Christian Education Foundation Ltd[33]
In Deans v Maryborough Christian Education Foundation Ltd, Ms Deans, a school teacher, injured her knee when she slipped on a grape while walking through a foyer which was being used by five and six-year-old children having a ‘fruit break’. The primary judge dismissed the claim, finding that the risk of injury was not foreseeable and, in any event, the risk of injury was insignificant and did not require the respondent to take precautions against the risk of injury. Ms Deans appealed.
As to the question of foreseeability, the Queensland CA held (per Gotterson JA; Sofronoff P and Morrison JA agreeing) that an absence of prior incidents provided an ‘insufficient basis’ for a finding against foreseeability. Evidence of prior incidents was relevant, but not determinative, and the CA concluded that, in this case, the risk of a teacher slipping on a grape left on the floor by a student during a fruit break was reasonably foreseeable.[34] However, the CA held that the lack of prior incidents during the five preceding years, coupled with the fact that, during that period of time, the area would have been traversed by thousands if not tens of thousands of people at and around the relevant time, was a sufficient basis for finding that the probability of the risk of harm eventuating was low. The appeal was dismissed.
Hawkesbury Sports Council v Martin[35]
In Hawkesbury Sports Council v Martin, Ms Martin tripped and fell on a steel cable strung between low timber posts forming a fence separating a carpark area from playing fields. At trial, Ms Martin led evidence from a building consultant and civil engineer, who concluded that it would have been difficult for a pedestrian to detect the grey cable against the shaded earth and gravel. The Council objected to this evidence on the basis that the expert did not have specialised knowledge of matters of ‘visual perception’. The primary judge held that the evidence was admissible. On appeal, a majority of the NSW CA held that the evidence was inadmissible: while a civil engineer who is designing structures ‘may need to consider potential risks that the structures pose to pedestrians, it is not apparent that such consideration would require or impart specialised knowledge with respect to human visual perception’.[36]
The majority of the CA then directed attention to the photographic evidence and noted that the presence and positioning of the concrete blocks was plain and obvious.[37] The majority held that the positioning of the concrete blocks, posts and cable relative to each other meant that someone using reasonable care for their safety could not attempt to pass through a space between the concrete blocks without noticing the timber posts and cable.[38] On that basis, the majority held that the evidence did not establish that the risk of harm caused by the positioning of the concrete blocks and the retention of the cable was not insignificant,[39] and, in any event, the risk of someone tripping or falling on the cable was ‘obvious’.[40]
Council of the City of Sydney v Bishop[41]
In Council of the City of Sydney v Bishop, Ms Bishop tripped and fell on a kerb in a pedestrian precinct and sustained a right hip injury. The kerb, which was parallel to the walkway, was initially flush with the walkway, but it progressively decreased in height to the point where there was a height discrepancy of about four to five centimetres, where Ms Bishop tripped.
The majority of the NSW CA viewed the photographs of the location, and found that the kerb had a ‘light-coloured surface’ whereas the laneway was a ‘dark grey pavement’, and found it ‘difficult to see’ how the application of a ‘reflective yellow strip’ would have added significantly to the prominence of the kerb. On that basis, the majority held that the ‘discernible difference’ between the kerb and walkway rendered the risk of tripping ‘obvious’[42] and, for the same reasons, found that a reasonable person in the Council’s position would not have taken the precaution of applying the yellow strips.[43]
Gerard Mullins and Phil Nolan are barristers at Darrow Chambers, Brisbane. PHONE (07) 3236 1882 / 0422 284 672 EMAIL gerrymullins@qldbar.asn.au / pnolan@qldbar.asn.au.
[1] [1998] FCA 1107; (1998) 87 FCR 301.
[3] State of New South Wales v Briggs (2016) 95 NSWLR 467; [2016] NSWCA 344.
[4] Hegarty v Queensland Ambulance Service [2007] Aust Torts Rep 81–919; [2007] QCA 366.
[6] Ibid, [2].
[8] Ibid, [9].
[9] Ibid, [19].
[10] Ibid, [31].
[11] Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16; [1986] HCA 1..
[12] Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1; [2009] HCA 35.
[14] Ibid, [75].
[15] Ibid, [136].
[17] Ibid, [139].
[19] Ibid, [113].
[20] Ibid, [33].
[22] Ibid, [61].
[23] Ibid, [60].
[24] Ibid, [61].
[25] [2019] NSWCA 94. The employer was not included in the action, presumably due to the thresholds in the relevant workers’ compensation legislation.
[26] Ibid, [69].
[27] Ibid, [67].
[28] Ibid, [16].
[29] Ibid, [18].
[30] Ibid, [78].
[32] Ibid, [7].
[34] Ibid, [48].
[36] Ibid, [33].
[37] Ibid, [38].
[38] Ibid, [39].
[39] Ibid, [38].
[40] Ibid, [40].
[42] Ibid, [28].
[43] Ibid, [30].
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URL: http://www.austlii.edu.au/au/journals/PrecedentAULA/2020/36.html