Conway v Campbelltown Catholic Club Ltd
[2022] NSWPIC 124
•23 March 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Conway v Campbelltown Catholic Club Ltd [2022] NSWPIC 124 |
| APPLICANT: | Robert Arthur Conway |
| RESPONDENT: | Campbelltown Catholic Club Ltd |
| MEMBER: | John Wynyard |
| DATE OF DECISION: | 23 March 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for 21% whole permanent impairment by applicant for hernia injuries; applicant successfully sued treating surgeon in Supreme Court; whether Commission had jurisdiction to entertain all or part of the claim; Held- section 151Z(1)(c) of the Workers Compensation Act 1987 applied to prevent the claim for orchidectomy and scarring from being assessed; remaining claim regarding the original injury for right inguinal hernia was assessed at 9% and did not reach the threshold; award respondent. |
| DETERMINATIONS MADE: | There is an award in favour of the respondent. |
STATEMENT OF REASONS
BACKGROUND
Robert Arthur Conway, the applicant, brings an application for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (1987 Act) in respect of an injury alleged to have occurred on 15 June 2016.
Dispute notices were issued, and proceedings were subsequently commenced.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) is the applicant 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 applicant proved he has an entitlement to compensation pursuant to s 66 of the 1987 Act?
PROCEDURE BEFORE THE COMMISSION
The matter was listed as a teleconference on 4 February 2022. As the issue was essentially legal, I ordered written submissions to be lodged. Mr Bill Carney of counsel supplied the submissions on behalf of the applicant, and Mr David Baran of counsel supplied those on behalf of the respondent.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Personal Injury Commission (the Commission) and considered in making this determination:
(a) Application to Resolve a Dispute (ARD) and attached documents;
(b) Reply and attached documents, and
(c) Application to Admit Late Document (ALD) and attached documents from the respondent.
FINDINGS AND REASONS
The facts of this matter are in small compass. They were usefully set out by Mr Baran, which I reproduce, with necessary amendments.
On 17 December 2021 Mr Conway filed an ARD seeking orders that his claim for whole person impairment of 21% be referred for independent assessment.
In his Application Mr Conway identified the date of injury as being 15 June 2016. He alleged that he was moving large garbage bags and as he lifted the bags to place them into the dumpster bin he sustained hernia injuries. The system alleged to be injured is the digestive system. The rating claimed is 21% whole person impairment which equates to $51,880.
In two notices issued pursuant to s 78 of the 1987 Act the respondent has disputed the claim as now constituted.
Between 16 June 2016 and up to the present time the applicant sought medical treatment. He had to undergo a number of operations arising out of complications with this hernia repair involving the insertion of mesh.
On 7 May 2019 the applicant commenced proceedings in the Supreme Court of New South Wales alleging that his former surgeon, Dr Fedorine, breached his duty of care to the applicant in the provision of treatment to him.
The applicant alleged in his Supreme Court proceedings that Dr Fedorine advised the applicant to have surgical repair of what had been diagnosed as bilateral inguinal hernias as well as an umbilical hernia. This surgery would be undertaken using a ‘key hole’ method requiring a stay of three nights in hospital.
On 13 July 2016 the procedure took place. By 14 July 2016 the applicant noticed his right testicle was badly swollen and the area was bruised. Despite this the applicant was discharged on 15 July 2016.
A consultation with Dr Fedorine on 25 July 2016 resulted in a ‘wait and see’ approach being adopted. Thereafter a series of complications developed from August 2016 and by 12 August 2016 the applicant required admission to Campbelltown Hospital. The complications arising out of the procedure performed by Dr Fedorine were so significant that an orchidectomy was performed in respect of the applicant’s right testicle which by 18 August 2016 was ischaemic. However further problems continued and a further procedure took place on 31 October 2016.
By 3 November 2016 the applicant had tested positive to methicillin resistant staphylococcus aureus.
On 16 March 2017 more surgery was required to try and correct what had occurred. On 20 July 2017 the applicant came under the care of another specialist surgeon, Dr Gilmore, who performed corrective surgery.
In his Supreme Court proceedings the applicant alleged that the surgeon owed him a duty of care and that that duty of care was breached. The breach caused the applicant to suffer persistent ongoing infection, tissue damage, wound breakdown and complications with ongoing repair and treatment. In his Statement of Claim[1] he alleged that as a direct cause of the surgeon’s breach he suffered severe injury, loss and damage which would be set out in a Statement of Particulars.
[1] ALD p 8 at [46].
On 20 December 2019 a “Statement of Particulars – Personal Injury Proceedings” was filed in the Supreme Court.[2] The Statement of Particulars is required pursuant to the Uniform Civil Procedure Rules 2005 (NSW).
[2] ALD p 14.
The claim as agitated by the applicant in the Supreme Court was regulated by the Civil Liability Act 2002. The particulars of injuries and disabilities included damages for pain and suffering or non-economic loss.3 The applicant’s claim in the Supreme Court claimed damages for harm constituted by personal injury as defined in the Act. ‘Personal injury’ is defined in the Act in a manner that is inclusive.
Pursuant to a Deed of Release and Indemnity the applicant entered into a Deed of Settlement with the surgeon, Dr Fedorine. The Deed referred to the claim in the recitals,[3] noting that the applicant alleged he sustained injury, loss and damage as a direct result of surgical repair of the applicant’s umbilical, right inguinal and scrotal hernia and both left direct and indirect inguinal hernias, whereby it was alleged the applicant suffered injury loss and damage. The surgeon denied any liability in negligence. The payment of the settlement sum was in respect of not only the pleaded claim but any hypothetical claims that the applicant may have had against the surgeon but had not brought.[4]
SUBMISSIONS
[3] ALD p 27 at [2].
[4] ALD p 27 at [4].
Mr Carney
Mr Carney submitted that the facts of the situation were governed by s 151A of the 1987 Act, which he kindly reproduced. He submitted that the Deed of Release assisted to define the injury described in that section. He submitted that it was not the Deed itself that invoked the provisions of the section, but rather the payment of Damages. He referred to Gardiner v Liang O’Rourke Aust Constructions P/L[5] in that regard.
[5] [2020] NSWCA 151.
Accordingly, for the section to have any application, the damages paid in the Supreme Court had to identify the lifting injury of 15 June 2016 for it to have any effect, as I understood
Mr Carney’s submission. Mr Carney further submitted that a tortious act which exacerbated the effect of an injury was not recoverable under s 151Z of the 1987 Act, referring to Kornjaca v Steel Mains Pty Ltd.[6]By extension, Mr Carney argued, compensation (I assume Mr Carney meant treatment expenses) paid by a workers compensation insurer was not recoverable by that insurer when “those” treatment expenses are referrable to a medical negligence claim. Damages which relate to the injury for which compensation is payable under the 1987 Act were different to those payable for the relevant tortious act in a medical negligence claim which arose out of treatment for that injury, I understood Mr Carney to claim.[6] (1947) NSWLR 343.
Accordingly, Mr Carney submitted that the Deed of Release related only to the negligent medical treatment, and not the injury itself of 15 June 2016, “which was known by both parties at the time the deed was executed”. There was no clause in the Deed which related to that injury, Mr Carney submitted.
Mr Carney referred to Hood Constructions Pty Ltd v Nicholas[7] in submitting that the phrase “injury for which compensation is payable” did not refer to damages payable in a medical negligence claim, and accordingly s 151A was not applicable. The damages paid pursuant to the Deed of Release were not paid as a result of the injury sustained on 15 June 2016,
Mr Carney submitted. The workers compensation insurer remained liable in that regard.[7] (1987) NSWLR 60.
United States Surgical Corporation v Hospital Products[8] was authority, Mr Carney said, for the proposition that a Deed of Release stated in general terms would nonetheless be limited to matters that were specifically within the contemplation of the parties at the time the Deed of Release was executed. It followed that the relevant question was as to what was in the contemplation of the parties at the time Mr Conway entered into the Deed in November 2020. Mr Carney submitted that the answer was that the injury itself of 15 June 2016 was not mentioned, notwithstanding that it had been accepted. Moreover, Mr Carney said that it was not contemplated that a result of the Deed would be the termination of weekly payments, which was a relevant factor in Gardiner.
[8] (1982) NSWLR 766.
It accordingly followed that s 151A had no application. Compensation was paid in relation to the injury of 15 June 2016, and not the injury that gave rise to the action in medical negligence, Mr Carney argued.
Mr Baran
Mr Baran referred to the terms of the Deed of Release, which included in the recitals the Supreme Court case number by which Mr Conway brought his claim. Mr Baran submitted that those proceedings should be construed as a whole. He submitted that the payment of the settlement sum ($650,000) was in respect not only of the pleaded claim, but of any hypothetical claim that the applicant may have had against the surgeon, but not brought.
Mr Baran submitted that it was “vital” that the Deed covered all heads of damage, whether pleaded or hypothetical, and that it therefore extended to include damages for non-economic loss or pain and suffering.
Mr Baran then considered the claim that is before the Commission. He noted that it relied on the report of Dr Peter Endrey-Walder, whose opinion was that Mr Conway had suffered 9% whole person impairment (WPI) with respect to the injury pleaded in the ARD, and a further 12% WPI in relation to the right orchidectomy and scarring. He submitted that the assessment in relation to the actual injury of 15 June 2016 – the right inguinal hernia – did not reach the threshold pursuant to s 66. (I interpolate to observe that, in order to qualify for lump sum compensation pursuant to s 66, a WPI of over 10% has to be established).
Accordingly, Mr Baran argued, the assessments which gave the Commission jurisdiction were the same injuries that had already been the subject of the Supreme Court proceedings. The fact that there were two different modes of assessment for non-economic loss under the Civil Liability Act 2002 and the 1987 Act was irrelevant as they related to two different regulatory approaches, and not the relief that is available.
Part 5 of the 1987 Act did not create a statutory foundation out of a workers common law right of action, which remains a creature of the common law. Mr Baran submitted, citing Berowra Holdings Pty Ltd v Gordon.[9] The purpose of Part 5 was to regulate that right, s 151 of the 1987 Act preserving common law and other liability. It followed, Mr Baran argued, that the rule against double recovery was not excluded, and operated in cases such as the present.
[9] (2006) 228 ALR 687 at [18].
Citing Smith v The Commonwealth Oil Refineries Ltd[10] and Adams v Fletcher International Exports Pty Ltd,[11] Mr Baran submitted that there was no doubt that Mr Conway had recovered damages. Section 151Z(1)(c) was clear in its terms that Mr Conway was accordingly not entitled to recover compensation under the 1987 Act.
[10] (1938) 60 CLR 141, 147 – 148.
[11] 2008] NSWCA 238.
Mr Baran argued that s 151A had no application, as it was restricted in its terms to situations where it was the employer who had been found liable to pay damages. The applicable section was s 151Z, Mr Baran submitted, because it involved recovery not only from an employer, but – as was the case here – from a stranger, namely the negligent surgeon.
Mr Baran conceded that the terms of the Deed did not incorporate any injury that arose from the incident of 15 June 2016 itself, but that it covered the injury caused by the subsequent events. Section 151Z(1)(c) accordingly had application.There was no basis accordingly for the applicant’s submission that the Deed did not identify the injuries that were to be compensated apart from the negligence by the surgeon, and that there were no particulars as to what the damages were paid for. A proper construction of the Deed showed that damages were paid for “every single injury and disability either as pleaded or not pleaded that arose from the conduct of the surgeon”. Mr Baran argued that the testicular injuries and scarring as a result of the consequent surgery were compensated as a result of the Deed, which was concerned with the negligent treatment by the surgeon.
Mr Carney’s reliance on Kornjaca was irrelevant, Mr Baran claimed, as that case was concerned with indemnity. Similarly, Hood had no application, as it was concerned with whether or not payments made by workers compensation insurer were repayable once a damages award had been made for medical negligence, and involved cross claims.
The submission by the applicant that what was in contemplation when the parties entered into the Deed was also irrelevant, as it contravened the objective theory of contract. Gardiner was also irrelevant. Mr Baran submitted that there was a common law principle against double recovery which had its statutory form in s 151Z(1)(c). Mr Baran referred to Tran v Ho[12] in that regard.
[12] [2017] NSWCA 134.
I note that no response has been made by the applicant.
CONSIDERATION
Legislation
Section 151A of the 1998 Act provides relevantly:
“151A EFFECT OF RECOVERY OF DAMAGES ON COMPENSATION
(1) If a person recovers damages in respect of an injury from the employer liable to pay compensation under this Act…”
Section 151Z provides relevantly:
“(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) ….
(c) if the worker firstly recovers those damages the worker is not entitled to recover compensation under this Act,..
…..”
DECISION
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.
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 applicant is left only with his cause of action regarding the injury he suffered on 15 June 2016.
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. 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.
I accept the submissions of Mr Baran.
There is an award for the respondent.
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