Australia: The surprising cost of a piercing noise - Insights from Hooker v Allied Pumps Pty Ltd (No.2) (2018) WADC 129

Last Updated: 19 December 2018
Article by Vidal Hockless

This is essentially an unremarkable damages claim arising out of a workplace injury, made noteworthy by the unusual facts relating to injury, the extensive review of medical evidence undertaken by his Honour, Judge McCann and the application of this review to a damages assessment of just under $2 million.

The plaintiff Mr Hooker suffered spinal injuries as a result of his reaction to being startled by a loud noise made by an alarm activating in close proximity to him at his place of employment. The culprit was a gas detector that was set off, emitting a very loud alarm. The plaintiff allegedly turned suddenly, twisting his neck and injuring his cervical spine which resulted in secondary injury to his back and later, psychological problems. The gas detector was out of service. It probably should not have been there. A co-employee was fiddling with it and may have set it off intentionally, or at least carelessly.

In a lengthy judgment his Honour Judge McCann reviewed all the evidence in considerable detail and found for the plaintiff, awarding nearly $2 million in damages. We venture to suggest that neither the liability finding nor the size of the damages award would seem immediately to be the expected outcomes of an incident of the type described. However, those outcomes are far less surprising upon reading the reasons for decision.

On negligence, his Honour's finding is shortly expressed in the following passage at page 22 –

"in my opinion the magnitude and type of startle response evidenced by the plaintiff was reasonably foreseeable, as was the risk that he would suffer musculo-skeletal harm of the whiplash kind".

This central conclusion is obviously one of fact, although critically dependent on his Honour's application of the law relative to foreseeability.

Having occupied some 25 pages in his analysis of the facts and liability, his Honour devotes the remaining 111 pages of the judgement to reviewing the medical evidence and damages. For those practicing in this field the value to be derived from the judgment is likely to be in the discussion of issues rather than any key findings.

The decision encompasses discussion of cervical fusion by way of artificial disc, implanted stimulators, abnormal illness behaviour, central nervous system hyper sensitisation (CHS) and "the compo effect" in the context of evidence from prominent neuro-surgeons, a professor of orthopaedic surgery, pain management specialists, an occupational physician, psychologists and psychiatrists.

His Honour's attitude to the plaintiff and assessment of the plaintiff is well exemplified by his comment that he believed that the plaintiff "endeavoured to be an honest witness". He nevertheless demonstrated abnormal illness behaviour. This included a propensity to overreact and/or misconstrue events and information. His Honour noted that the plaintiff's partner had also been "unconsciously co-opted" into the acceptance of a false construct suggesting that the plaintiff is far more unwell than the facts would indicate.

Abnormal illness behaviour is generally a contra-indication to major spinal surgery, but whilst acknowledging the issue in this case, Mr Miles, the treating neurosurgeon, maintained his recommendation. Professor Sikorski remained sceptical and was also in the minority of the medical practitioners voicing an opinion on CHS by his refusal to accept its legitimacy as a diagnosis. His Honour commented that there was a weight of medical opinion for the existence of the condition, although it was not susceptible to any specific diagnostic test.

In the result, the CHS was not a major factor in the assessment of the plaintiff's damages. His loss of amenities and loss of earning capacity were largely attributable to the physical effects of the injury and surgery and his abnormal illness behaviour. In assessing damages, however, his Honour took into account the likelihood that the plaintiff would enjoy some greater degree of recovery following the conclusion of proceedings and on that basis found that he would be able to exercise some earning capacity in the future.

Conclusion

This decision highlights not so much the fact that the response to injury of those in the compensation system differs from others (which may not come as a surprise to readers), but the fact that it is both medically significant and that it is acknowledged by doctors – at least those who gave evidence in this case. As a corollary, and by way of observation, a question may arise as to whether that understanding is prevalent amongst those medical practitioners closest to the coal face, the GPs, whose influence could be most relevant to outcomes.

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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