George v Survery - [2009] NSWSC 5

CITATION: George v Survery [2009] NSWSC 5

HEARING DATE(S): 18 December 2008

JUDGMENT DATE :
12 January 2009

JUDGMENT OF: Harrison J

DECISION: 1. I declare that the plaintiff's injury for which compensation is payable under the Act was caused under circumstances creating a liability in the defendant to pay damages in respect of the injury.
2. Costs are reserved.

CATCHWORDS: WORKERS' COMPENSATION – alternative rights against employer and third party – where worker who suffered a work-related injury from a heart condition received compensation from employer – where worker later claimed damages from his medical practitioner for breach of duty in his treatment of the worker’s cardio myopathy and ventricular failure - Workers Compensation Act 1987 s 151Z(1) – UCPR rule 28(2) – separate determination of question whether worker's injury for which compensation was payable under the Act was caused under circumstances creating a liability in the medical practitioner to pay damages in respect of the injury

LEGISLATION CITED: Workers' Compensation Act 1987

CATEGORY: Procedural and other rulings

CASES CITED: Dudley v Condell Park Carrying Co Pty Limited (1988) 4 NSWCCR 58
Franklins Self Serve Pty Ltd v Wyber [1999] NSWCA 390; (1999) 48 NSWLR 249
Kornjaca v Steel Mains Pty Ltd [1974] 1 NSWLR 343
Russell v J J Woods & Sons Carriers Pty Ltd [2002] NSWCC 38

PARTIES: Kevin George (Plaintiff)
Dr Hafizur Survery (Defendant)

FILE NUMBER(S): SC 20221 of 2006

COUNSEL: D E Graham (Plaintiff)
M I Bozic SC (Defendant)

SOLICITORS: Slater & Gordon Limited (Plaintiff)
Paul Tsaousidis (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
PROFESSIONAL NEGLIGENCE LIST

HARRISON J

12 January 2009

20221 of 2006 Kevin George v Dr Hafizur Survery
JUDGMENT

1 HIS HONOUR: By notice of motion filed on 14 October 2008 the defendant sought an order pursuant to UCPR rule 28(2) that the Court separately determine the question of whether s 151Z of the Workers Compensation Act 1987 ("the Act") applies in the circumstances of the plaintiff's claim against him. That separate question came before me for determination on 18 December 2008.

Background

2 The facts are not in dispute. The plaintiff was born on 11 February 1946 and is now an unemployed truck driver. On 12 June 2003 the plaintiff consulted the defendant who is and was then a registered medical practitioner in general practice. The plaintiff had experienced a sudden onset of chest pain earlier that day while pulling a pallet onto the tailgate of his truck in the course of his employment with K & E George Pty Ltd ("the employer"). The chest pain was central with no radiation. It was associated with nausea, giddiness, sweating and shortness of breath. The pain was relieved by rest and lasted for approximately 30 minutes.

3 On 13 June 2003 the plaintiff underwent an ECG, which was reported as being within normal limits. He underwent a cardiac enzymes test the same day which was also reported as normal. The plaintiff consulted the defendant again on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] NSWSC 5
Decision Date: 12 January 2009

CaseChat Overview and Summary

The case before the court involved a worker, George, who sought damages from his medical practitioner for alleged breaches in the treatment of his cardiomyopathy and ventricular failure, which were considered work-related injuries. George had previously received compensation for these injuries from his employer under the Workers Compensation Act 1987. The court was required to determine whether George could pursue his claim against the medical practitioner despite having already received compensation from his employer, and whether the medical practitioner was liable for damages.

The central legal issue was whether the worker's injury, for which compensation was already payable under the Workers Compensation Act, could create a separate liability in the medical practitioner to pay damages. The court considered whether the statutory provisions, specifically section 151Z(1) of the Workers Compensation Act 1987 and UCPR rule 28(2), permitted such a separate determination of liability. The court needed to balance the statutory scheme that provides a no-fault compensation system with the common law principles that allow for claims against third parties when they are at fault.

The court held that the statutory provisions did permit a separate determination of whether the medical practitioner was liable for damages in respect of the work-related injury. The statutory scheme does not preclude a worker from pursuing a claim against a third party if that party was at fault. The court emphasised that the statutory compensation was not intended to be the exclusive remedy for the worker and that the statutory provisions were not designed to override the common law. The court concluded that the medical practitioner could be held liable for damages if it was established that they breached their duty of care in the treatment of the worker's condition. The court allowed George's claim to proceed to a determination of the issue of liability on the part of the medical practitioner.

The court's final orders were to permit George's claim against the medical practitioner to proceed, subject to the determination of whether the medical practitioner was liable for damages in respect of the work-related injury. The court clarified that this decision did not affect the worker's entitlement to compensation under the Workers Compensation Act, and that the worker could still seek compensation from his employer if the medical practitioner was found not liable. The court's decision balanced the statutory compensation scheme with the common law principles that allow for claims against third parties when they are at fault.

Orders