Australia: Unique living arrangements grounds for awarding damages for gratuitous services: Australian Legal Update

Legal Insights
Last Updated: 18 April 2018
Article by Olga Sashko

A worker who suffered a neck injury and secondary psychiatric injury during the course of his employment has been awarded more than one million dollars in damages, despite significant causation issues whereby the Claimant first reported symptoms consistent with a disc prolapse some four months post incident.

In Souz v CC Pty Ltd [2018] QSC 36, the Plaintiff claimed damages for a neck injury, and secondary psychiatric injury and opioid dependency as a result of an incident on 26 June 2013 ('the incident'), whilst working underground as a day shift supervisor and coordinator at the Cook Colliery for CC Pty Ltd ('the Employer').

The Plaintiff was driving a loader supplied by the Employer, weighing approximately 23 tonnes. The loader is such that the operator sits facing toward the long side of the machine, though the machine travels left or right. There is also a canopy above the loader, which can travel up and down. When raised to the highest point of 2.2 metres, the canopy can collide with roof of the mine or with attachments to roof.

The Plaintiff in this instance has no memory of the incident. That said, McMeekin J considered it was probable and largely uncontested that the canopy of the subject loader collided with a steel beam running across the roof of the mine, causing the Claimant to sustain an injury to his left arm.

The Plaintiff says he knew nothing of the canopy or its ability to move. It is the Plaintiff's assertion that his gumboot must have got caught up under the lever, causing it to rise. The Employer argued the Plaintiff must have raised the canopy and forgotten to lower it and, for various reasons, argued the raising of the canopy could not have occurred as alleged by the Plaintiff.

McMeekin J held the existence of a breach of duty on the part of the Employer was "beyond argument", noting the introduction of a machine underground, where workers essentially operate in the dark and where there is the ability to collide heavily with overhead objects, exposed the operators to a serious risk of injury. In this sense, McMeekin J further noted the burden of taking precautions against such a risk was light. McMeekin J went as far as to say that even if the Employer's version of events was accepted (being that the Plaintiff forgot he had raised the canopy), employers are still obliged to account for thoughtlessness or inadvertence by the worker

The Plaintiff was ultimately diagnosed with a disc prolapse at the C6/7 level. He first reported symptoms consistent with a prolapse on 25 October 2013, some four months after the date of the incident. The contest was whether the prolapse was caused by the incident.

One of the Plaintiff's treating neurosurgeons considered the symptoms described by the Claimant after 25 October 2013 were consistent with a contemporaneous injury and not with an injury four months prior. Further, it was agreed amongst treating neurosurgeons that a causal link would be either probable or possible (slightly differing opinions) had the Claimant experienced symptoms such as neck or shoulder pain or tingling or numbness in the arm within a short time of the incident.

McMeekin J referred to the evidence of a number of witnesses, that the collision involved significant forces and that the Plaintiff had sustained a head injury of some sort at the time. The evidence indicating the Plaintiff had reported neck pain the next day was also noted. Ultimately McMeekin J held that Plaintiff "may well have had" significant forces imposed on his neck as well. Whilst there was no record of the Claimant reporting pain consistent with the injury prior to October 2013, McMeekin J accepted the Claimant's allegation that he nevertheless experienced symptoms.

With respect to some notes made by a WorkCover officer at the time of the lodgement of the claim, which indicated the Claimant had not sustained a neck injury at the time of the incident, McMeekin J considered there was a "strong prospect" that the notes made by the WorkCover officer four days after the incident were a "reconstruction" of the circumstances of the incident, which were based on information provided to the Claimant, and "shed little light on the true state of affairs". Further, McMeekin J held the Hospital note made on the night of the incident was misleading and difference inferences could be drawn in relation to testing performed.

McMeekin J concluded that the diagnosed disc prolapse was caused by the incident of 26 June 2013 and was satisfied, on the balance of probabilities, that causation could be established.

The Plaintiff was awarded significant damages, over a million dollars ($1,125,949.04). This amount interestingly took into account an award for gratuitous damages.

The Plaintiff moved in with Ms Walker, an assistant in nursing, some time after the incident. He paid Ms Walker $300.00 per week in rent and provision of services, which included cleaning, cooking, laundry, medication, shopping and driving.

McMeekin J considered that the services provided by Ms Walker to the Plaintiff constituted "gratuitous services" pursuant to section 206D of the WCRA. He held that the relationship between the Plaintiff and Ms Walker did not fit the definition of a member of "household" and found that the Plaintiff moved in with Ms Walker, a stranger, solely in order to receive the services.

Implications

This case serves a reminder that when the mechanism of injury is in issue between the parties, it is entirely open for a trial Judge to accept the Plaintiff's evidence despite the Defendant's attacks on the Plaintiff's credit. Historically, Judges sitting in the Northern jurisdiction have provided judgments favourable to Plaintiffs and this case is entirely consistent with that experience.

In assessing causation, generally a Court will give significant weight to contemporaneous notes taken at the time of early clinical appointments or at the time of lodgement of the claim on the basis that they are likely to be more accurate. It is, nonetheless, open for a Judge to accept a Plaintiff's expert medical evidence on the issue of causation and give primacy to this medical evidence as opposed to the contemporaneous notes.

Finally, this case demonstrates that there are some circumstances, albeit limited, where restrictions on claiming damages for gratuitous services may also be interpreted in the Plaintiff's favour as was the case here in circumstances where the Plaintiff was said to be in a living situation which was considered "unique".

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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