Conway v Campbelltown Catholic Club Limited
[2023] NSWPICPD 5
•1 February 2023
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
CITATION: | Conway v Campbelltown Catholic Club Limited [2023] NSWPICPD 5 |
APPELLANT: | Robert Conway |
RESPONDENT: | Campbelltown Catholic Club Limited |
INSURER: | Hotel Employers Mutual Limited |
FILE NUMBER: | A1-W6534/21 |
PRESIDENTIAL MEMBER: | Acting Deputy President Geoffrey Parker SC |
DATE OF APPEAL DECISION: | 1 February 2023 |
ORDERS MADE ON APPEAL: | 1. The Member’s Certificate of Determination dated 23 March 2022 is confirmed. |
CATCHWORDS: | WORKERS COMPENSATION – section 151Z(1)(c) of the Workers Compensation Act 1987 – Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37; 156 CLR 522 and Lindeman Limited v Colvin (1947) 74 CLR 313 discussed |
HEARING: | On the papers |
REPRESENTATION: | Appellant: |
| Mr B Carney, counsel | |
| Stacks/Goudkamp | |
| Respondent: | |
| Mr D Baran, counsel | |
| BBW Lawyers | |
DECISION UNDER APPEAL | |
MEMBER: | Mr J Wynyard |
DATE OF Member’s DECISION: | 23 March 2022 |
INTRODUCTION AND BACKGROUND FACTS
On 23 March 2022, a Member of the Personal Injury Commission determined the appellant’s (Mr Conway) claim against the respondent, Campbelltown Catholic Club Limited, by making an award in favour of the respondent. The appeal is against that award.
The appellant filed an Application to Resolve a Dispute, claiming lump sum compensation for injury where there was a dispute as to liability. The date of injury alleged was 15 June 2016. The appellant alleged that he sustained multiple hernias as a result of lifting bags of rubbish and placing them in a dumpster bin.
The respondent disputed the allegation of injury and continues to deny that the appellant sustained the hernias as alleged or in the course of employment with the Campbelltown Catholic Club.
The appellant had surgical treatment for the hernias performed by Dr Fedorine. As a result of the surgery the appellant suffered severe complications including an orchidectomy. The appellant alleged that the surgery and medical treatment were performed negligently.
On 7 May 2019, the appellant commenced proceedings in the Supreme Court against Dr Fedorine.
On 2 November 2020, the appellant and Dr Fedorine executed a Deed of Release and Indemnity (the Deed), whereby Dr Fedorine agreed to pay the appellant the sum of $650,000, inclusive of costs, in full and final settlement of the claim. Dr Fedorine did not admit negligence. As a condition of the settlement, the appellant agreed to discontinue the Supreme Court proceedings.
STATEMENT OF REASONS
Before the Member, the issues as identified by the parties for determination were:
(a) is the appellant precluded from bringing this action, or any part of it, by his receipt of damages in the Supreme Court in case number 2019/00142628;
(b) if part of the application is within jurisdiction, has the appellant proved he has an entitlement to compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act).
The Member set out the facts as set out in the respondent’s submissions as he said (correctly) the relevant facts were within a narrow compass.
He noted that in the Supreme Court proceedings, the appellant alleged that Dr Fedorine advised him to have surgical repair of bilateral inguinal hernias, as well as an umbilical hernia. The complications of the surgery were so significant that an orchidectomy was performed in respect of the appellant’s right testicle. This did not resolve all of the complications and further medical procedures occurred on 31 October 2016.
The appellant, on 3 November 2016, tested positive to methicillin resistant staphylococcus aureus.
Corrective surgery occurred on 16 March 2017 and again on 20 July 2017. The latter surgeries were performed by Dr Gilmore.
The Supreme Court proceedings were regulated by the Civil Liability Act2002. The particulars of injuries and disabilities included damages for pain and suffering or non-economic loss.
The Deed referred to the claim in the recitals, noting that the appellant alleged he sustained injury, loss and damage as a direct result of surgical repair of the appellant’s umbilical, right inguinal and scrotal hernias and both left direct and indirect inguinal hernias. The surgeon denied liability in negligence. The payment of the settlement sum was in respect of not only the pleaded claim but any hypothetical claims that the appellant may have had against the surgeon but had not brought.
The appellant submitted that the matter was governed by s 151A of the 1987 Act and that the Deed related only to the negligent medical treatment and not to the injury of 15 June 2016 itself. The appellant submitted that there was no clause in the Deed which related to the injury of 15 June 2016.
The respondent submitted that the governing provision was s 151Z(1)(c) of the 1987 Act and that on a proper construction of the Deed, the damages were paid for every single injury and disability, either as pleaded or not pleaded, that arose from the conduct of the surgeon. The testicular injuries and scarring as a result of the consequent surgery were compensated for by the payment under the Deed. Accordingly, the respondent submitted that Mr Conway had recovered damages. Section 151Z(1)(c) was clear in its terms and against Mr Conway recovering compensation under the 1987 Act.
The Member accepted the respondent’s submissions.
The Member expressed his decision in three conclusory paragraphs, which I set out in full:
“41. The application must be rejected. Section 151A has no application as it can be seen that its provisions relate only to where a person has recovered damages in respect of an injury ‘from the employer liable to pay compensation under this Act’. That is not the case that is before me, and the provisions of s 151Z, relating as they do to an injury ‘creating a liability in some person other than the worker’s employer to pay damages’ apply.
42. The provisions of s 151Z(1)(c) are unambiguous and are applicable to the circumstances of this case. Mr Conway has recovered damages from a person other than the employer for the injuries caused by the negligence of the surgeon, including the scarring caused by his surgery, and the [appellant] is left only with his cause of action regarding the injury he suffered on 15 June 2016.
43. Dr Endrey-Walder found that the right inguinal hernia should be assessed as a Class 1 impairment under the relevant guidelines and assessed 9% WPI [Whole Person Impairment]. His assessment of the scarring quite properly included all the numerous surgical procedures that the negligent surgeon was responsible for, and as indicated, they were included in the damages award pursuant to the Deed. Mr Conway’s claim accordingly does not reach the required threshold pursuant to s 66 of the 1987 Act.”[1]
[1] Conway v Campbelltown Catholic Club Limited [2022] NSWPIC 124 (reasons), [41]–[43].
The finding at [43] of the reasons is not the subject of the appeal and will not be disturbed by the determination of the appeal.
The Member found at [41] of the reasons that s 151A did not apply to the present claim. There is no appeal from that finding.
PROCEDURAL ISSUES
The appeal has been commenced within 28 days of the decision.
The amount claimed by the appellant is $51,880, being a 21% whole person impairment.
ON THE PAPERS
The parties are in agreement that the appeal may be dealt with on the papers.
Section 52(3) of the Personal Injury Commission Act 2020 provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
I am satisfied that the documents and the submissions of the parties provide me with sufficient information so that the appeal can be determined on the papers without holding any formal hearing.
NATURE OF THE APPEAL PURSUANT TO SECTION 352(5) OF THE WORKPLACE INJURY MANAGEMENT AND WORKERS COMPENSATION ACT 1998
The jurisdiction provided in s 352(5) of the Workplace Injury Management and Workers Compensation Act 1998 is:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
GROUND OF APPEAL
The appeal asserts only one ground of appeal, namely:
“The Member made an error of law when he found the damages paid in the medical negligence settlement gave rise to a bar to the appellant recovering workers compensation benefits under s 151Z(c) [sic] of the [1987 Act]”.
Appellant’s submissions
The appellant challenges the Member’s determination by submitting that s 151Z(1) refers to facts (the circumstances) which give rise to the “other cause of action”. It requires those same facts or circumstances to give rise to the compensation payable in respect of the injury.
The submission is expanded as follows:
“The Member has clearly misdirected himself when in paragraph 42 when he finds that the injury cause[d] by the negligence of the surgeon is an injury to which s 151Z applies. The injury clearly must be one that is caused in circumstances that attract the provisions of the [1987 Act], namely that it occurred at work or in the course of employment (s 4) and satisfies s 9A. Clearly the surgeon’s negligence is not an injury that arose out of the circumstances that gave rise to injury that is subject to ss 4 & 9A of the [1987 Act].”[2]
[2] Appellant’s submissions, [7].
The appellant submits it has been held that a tortious act which exacerbates the effects of an injury is not recoverable under s 151Z of the 1987 Act.[3] He submits in this case the ‘tortious act which exacerbates the effects of injury’ is the negligence of the surgeon and the subsequent loss of the right testicle. A poor outcome of treatment does not make the treatment a novus actus interveniens.[4]
[3] See Kornjaca v Steel Mains Pty Limited [1974] 1 NSWLR 343 (Kornjaca).
[4] See Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37; 156 CLR 522 (Mahony).
The appellant argues that the Member made an error in finding that s 151Z precludes the assessment of loss of the right testicle being referred to the Medical Assessor for whole person impairment assessment.
In the event the appeal is allowed, the appellant seeks an order that the matter be remitted by the President to a Medical Assessor for assessment of the right inguinal hernia and the right orchidectomy.
Respondent’s submissions
The respondent makes the point that the injury is itself in dispute. The respondent does not accept that the appellant sustained any injury on 15 June 2016 in circumstances attracting an entitlement under the 1987 Act.
The respondent submits that the formulation of the ground of appeal misrepresents what the Member found:
“What the Member found was the medical assessment contained in a report from Independent Medical Examiner, Dr Endrey-Walder, contained a number of injuries all of which had been compensated by way of damages to the exclusion of the original alleged hernia injury that was said to have arisen either out of or in the course of employment.
The residue left the hernia injury itself at 9% WPI which was below the threshold. Accordingly the claim was not justiciable and an award for the Respondent was entered.”[5] (emphasis in original)
[5] Respondent’s submissions, [18]–[19].
The respondent submits that paragraph [7] of the appellant’s submissions is antithetical to the appellant’s claim because if it is accepted, the impairment resulted from the surgeon’s negligence which is not an injury that arose out of or in the course of employment.[6]
[6] Respondent’s Submissions, [21]–[23].
Furthermore, the appellant’s submission at paragraph [7] must be rejected because:
“workers compensation jurisprudence has long held that an injury pursuant to s 4 which results in impairment can set off a chain or series of events. If that chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes it will be open to the Commission to award compensation under the Act: Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452, 462E. See also Sydney South West Area Health Service v Dyer [2012] NSWWCCPD 46. If the chain were broken axiomatically there can be no s 66 claim for the medical injuries.”[7]
[7] Respondent’s submissions, [22].
The respondent says Kornjaca was a case dealing with s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 and that Mahony is authority for the proposition that, as a matter of common law principle, an employer will still be liable for reasonably foreseeable negligent conduct of a medical practitioner treating a worker unless it can be demonstrated the negligence was gross negligence.
The respondent submits:
“The fundamental flaw in the Appellant’s submissions is the fact that the Appellant (impermissibly) now seeks to argue that, with the exception of the original hernia injury, all other injuries were not injuries within the meaning of the [1987 Act]. However, the very claim that was put in by the Appellant to claim 21% WPI were all predicated upon the fact that the Appellant asserted, without qualification, that all of the injuries, both surgical and non-surgical, were injuries within the meaning of the 1987 Act from which an impairment had resulted pursuant to s 66 and accordingly the claim was made. No challenge is made to the finding consistent with this proposition by the Member.
Taking the Appellant’s case at its highest all of the injuries, both surgical and non-surgical, were injuries for which compensation was payable under the 1987 Act. They were also, with the exception of the original hernia, injuries which created a liability in some other person namely the Doctor.”[8]
[8] Respondent’s submissions, [29]–[30], citing reasons, [31].
The respondent says that the appellant is now disentitled from recovering compensation for the (surgical) injuries under the Act and the only injury left is the original hernia injury which was below the threshold for making a claim pursuant to s 66, which is not in issue in this appeal.
Consideration
As I read the Member’s reasons for determination, he found against the appellant on two bases, namely:
(a) section 151Z(1)(c) applied and Mr Conway had recovered damages from a person other than his employer, namely, Dr Fedorine, and[9]
(b) the residual right inguinal hernia as assessed by Dr Endrey-Walder presented a 9% whole person impairment which did not reach the threshold required pursuant to s 66 of the 1987 Act.[10]
[9] Reasons, [42].
[10] Reasons, [43].
There is no appeal against the second basis upon which the Member determined the case adverse to the appellant. The only challenge is to the determination at paragraph [42] of the reasons. It follows that even if the appeal succeeds, there would not be a different award.
For the reasons that follow, the appeal from the award based on the Member’s determination that s 151Z(1)(c) of the 1987 Act is a bar to the appellant’s claim for compensation fails and is dismissed. The Member’s Certificate of Determination dated 23 March 2022 is confirmed.
Section 151Z(1) of the 1987 Act provides as follows:
“(1) If the injury for which compensation is payable under this Act was caused under circumstances creating a liability in some person other than the worker’s employer to pay damages in respect of the injury, the following provisions have effect:
(a)the worker may take proceedings both against that person to recover damages and against any person liable to pay compensation under this Act for payment of that compensation, but is not entitled to retain both damages and compensation,
(b)… [does not apply]
(c)if the worker firstly recovers those damages the worker is not entitled to recover compensation under this Act,
(d)…” (emphasis added).
It is established learning in workers compensation law that when a surgical procedure has been carried out to remedy or alleviate an injury compensable under the workers compensation legislation, the total condition resulting from the injury and the surgery is to be attributed to the original injury, so long as the worker reasonably agreed to the operation.[11]
[11] See Migge v Wormald Brothers Industries Limited [1972] 2 NSWLR 29, 44–46, per Mason JA in dissent expressly approved on appeal in the High Court, (1973) 47 ALJR 236; Mahony, 529.
In Mahony five members of the High Court said this:
“… When an injury is exacerbated by medical treatment, however, the exacerbation may easily be regarded as a foreseeable consequence for which the first tortfeasor is liable. Provided the plaintiff acts reasonably in seeking or accepting the treatment, negligence in the administration of the treatment need not be regarded as a novus actus interveniens which relieves the first tortfeasor of liability for the plaintiff’s subsequent condition. The original injury can be regarded as carrying some risk that medical treatment might be negligently given … It may be the very kind of thing which is likely to happen as a result of the first tortfeasor’s negligence … That approach is consistent with the view taken in the workers’ compensation cases that the total condition of a worker whose compensable injury is exacerbated by medical treatment, reasonably undertaken to alleviate that injury, is to be attributed to the accident: see Lindeman Ltd v Colvin (1946) 74 CLR 313 per Dixon J at p 321; Migge v Wormald Bros Industries Ltd (1972) 2 NSWLR 29, per Mason JA at p 48; on appeal (1973) 47 ALJR 236) …”.[12]
[12] Mahony, 529.
In Lindeman Limited v Colvin[13] the respondent suffered an injury to the head. At the hospital he was told that he could walk around in the grounds if the weather was fine and warm. He did so and whilst walking down a flight of steps broke his left leg. The respondent suffered a pathological condition of the bones which rendered his leg liable to spontaneous fracture in the ordinary course of walking. The High Court reversed the Full Court decision in favour of the worker. Latham CJ said:
“Where a second injury follows upon an original injury it may be causally connected with the original injury, as in cases of injury directly due to medical treatment of the injury. But not everything that happens during a period when a man is undergoing medical treatment can be regarded as part of the medical treatment so as to be causally connected with the injury for which he is being treated. A man undergoing medical treatment must have meals, and in one sense the eating of food may be described as an integral part of his medical treatment. But if these meals consist of normal food and he happens to choke himself and die, and the choking had nothing to do with his original injury, there would be no evidence to justify a finding that the death resulted from the original injury and so arose out of his employment. In this case the cause of the fracture was quite independent of the original injury. The bone condition of the respondent was not due to or aggravated by or otherwise affected by the original injury ... The act of walking was not necessitated by the head injury. Walking is a normal activity of ordinary life, and when the respondent was walking in the hospital grounds he was only resuming his normal life. There was no causal connection between the fracture and the original injury, and accordingly, in my opinion, the Commission did err in law in the decisions which it reached, and the questions in the case should be answered in the affirmative. The order of the Full Court should be set aside.”[14]
[13] (1947) 74 CLR 313 (Colvin).
[14] Colvin, 317–318.
Starke J (page 319) allowed the appeal, as did Dixon J (page 321) and Williams J (page 325). McTiernan J dissented at page 324.
In both the 1987 Act and the Civil Liability Act the definition of damages includes “monetary compensation”.[15]
[15] Section 149 of the 1987 Act, s 3 of the Civil Liability Act.
Mr Conway’s claim as brought in the ARD was for 21% whole person impairment. The impairment was the result of the original hernia injury enlarged by the surgical treatment. Plainly Mr Conway reasonably accepted the advice of Dr Fedorine and underwent surgical treatment. It follows from the above that the “total condition” including that which resulted from the surgery is attributed to the initial injury on 15 June 2016. It was for this “total condition” that Mr Conway was compensated under the Deed.
The appellant relies on Kornjaca as authority for the proposition that a tortious act which exacerbates the effects of an injury is not recoverable under s 151Z of the 1987 Act and that in Mr Conway’s case, the negligence of the surgeon and the subsequent loss of the right testicle is a tortious act which exacerbates the effects of the injury. I am not entirely clear as to what the appellant intends by the submission at paragraph [8]. I take it to imply that the payment of damages for the tortious act is therefore separate from the claim for compensation with respect to the original injury.
I do not accept this submission for the reasons that follow:
(a) The respondent’s submission that Kornjaca concerned a claim for contribution under s 5 of the Law Reform (Miscellaneous Provisions) Act is correct.
(b) Furthermore, Kornjaca was reversed in the High Court.[16] The High Court decision was distinguished in Mahony at 527 as being premised on having taken the facts to be that the second accident was not a foreseeable consequence of the first employer’s negligence notwithstanding the first employer’s concession to the contrary.[17]
(c) The decision in Kornjaca dealing with s 64 of the Workers’ Compensation Act 1926, a provision which was the 1926 Act’s equivalent to s 151Z, turned on the fact that the plaintiff had obtained a judgment by consent against Steel Mains.[18] That part of the decision does not assist Mr Conway in this matter.
[16] Dillingham Constructions Pty Ltd v Steel Mains Pty Ltd (1975) 132 CLR 323.
[17] See Mahony, 528.
[18] See Kornjaca, 347F.
Mr Conway has received monetary compensation pursuant to the Deed of 2 November 2020 from Dr Fedorine. The money paid under the Deed was “damages in respect of the injury”. As Mr Conway first recovered damages from Dr Fedorine, he was not entitled to recover compensation under the 1987 Act from the employer, the present respondent: s 151Z(1)(c). The Member was correct to apply s 151Z(1)(c) in answer to the appellant’s claim to compensation.
CONCLUSION
There is no challenge to the finding adverse to the appellant that because the initial injury resulted in a whole person impairment less than 10%, Mr Conway’s claim under s 66 could not be sustained in any event.
The challenge to the Member’s determination to apply s 151Z(1)(c) of the 1987 Act fails and the appeal is dismissed.
DECISION
The Member’s Certificate of Determination dated 23 March 2022 is confirmed.
Geoffrey Parker SC
Acting Deputy President
1 February 2023
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