Howell v the Uniting Church and C E Heath

[1990] TASSC 14

Serial No 8/1990
List "A"

COURT:  SUPREME COURT OF TASMANIA

CITATION                 Howell v The Uniting Church and C E Heath [1990] TASSC 14; A8/1990

PARTIES:  HOWELL
  v
  UNITING CHURCH
  C E HEATH (THIRD PARTY)

FILE NO/S:  WC 53/1990
DELIVERED ON:  6 April 1990
JUDGMENT OF:  Underwood J

Judgment Number:  A8/1990
Number of paragraphs:  30

Serial No 8/1990
List "A"
File No WC 53/1989

HOWELL v THE UNITING CHURCH and C E HEATH (THIRD PARTY)

REASONS FOR JUDGMENT  UNDERWOOD J

6 April 1990

1. The plaintiff was employed by the defendant as a trained auxiliary nurse at the Strathaven Lodge, a home for aged people. For some time prior to 17 February 1985 she had been working from 11pm to 7am every Saturday and Sunday. Occasionally, she worked on other shifts when required. The plaintiff was and is a married woman, now aged 46. She lives with her husband and two children.

1. About 6am on 17 February 1985, in the course of her duties, the plaintiff went into the laundry at the Lodge and was there suddenly confronted by two young male intruders. They attacked her. One of them kicked her in the leg and hit her across the mouth. The plaintiff screamed. The other intruder exposed his penis to the plaintiff and at the same time the one who assaulted her pushed her towards the exposed penis. She continued to scream. One of the men then hit her across the face. She fell to the floor, "blacking out". The intruders escaped and the plaintiff was found by another employee of the defendant, dazed and bleeding. She was taken to the Royal Hobart Hospital where she remained for the day. Following her discharge home she was greatly shocked and distressed by the incident. She suffered from headaches, shaking and uncontrollable crying. After consulting her general practitioner, she saw Mr Liddell, the neurosurgeon, and by his arrangement was admitted to St Helens Hospital. Although the physical injuries to the plaintiff were not extensive, she was so shocked by the traumatic episode that Mr Liddell asked Dr Burgess, a consultant psychiatrist, to see her. This he did for the first time in St Helens Hospital on 21 February 1985.

1. The plaintiff remained in hospital for a few days and was then discharged home. She was still shocked and manifested symptoms of shaking, crying, violent nightmares and disturbed sleep, nausea and skin rash. In Dr Burgess' opinion, all these symptoms were consistent with the existence of a post–traumatic stress disorder directly caused by the assault in the laundry.

1. The plaintiff continued to consult Dr Burgess on a fairly regular basis. He counselled her and prescribed an anti–depressant, an anti–emetic and a night–time sedating agent. The plaintiff experienced depression, lack of confidence, agoraphobia and anxiety. Her pre–morbid personality was robust. She was a well organised and energetic woman who cared for her family capably and worked two nights a week. Between the date of the assault and 17 July 1985 she remained at home. During this time her symptoms abated somewhat and she became keen to resume her employment. The defendant admits liability to pay compensation in accordance with the provisions of the Act and has made weekly payments in accordance with Schedule I, r3(1) between 17 February 1985 and 17 July 1985.

1. Dr Burgess was in some doubt as to whether the plaintiff's symptomology had sufficiently abated to enable her to return to work but, as she wished to try it, and, the matron at the Lodge was supportive, Dr Burgess advised her to attempt a return to work. The plaintiff returned to work on 17 July 1985 but only for about two hours per day, two to three days a week on the day shift. The plaintiff maintained this employment, the hours increasing a little as time passed, without interruption until 16 February 1986. She found that she could not face revisiting the laundry notwithstanding a sensitive attempt to do so in the company of a fellow employee.

1. Throughout this period the plaintiff continued her drug therapy and consulted Dr Burgess, initially once a fortnight and then once a month. The symptoms of her post–traumatic stress disorder did not continue to subside. She was still depressed, subject to bouts of crying, shaking and feelings of nausea. There was still a loss of confidence, agoraphobia and panic attacks which brought on a skin rash. Although able to drive a car over familiar routes she had no confidence if required to undertake an unfamiliar journey. She found the adjustment to day shift difficult and although she attempted to avoid expressing her feelings of fear, anxiety and depression in front of her family, she frequently found that she was unable to cope with the housework.

1. Dr Burgess was concerned that there was a risk of her condition becoming chronic. The authorities at the Lodge banned discussion of the incident at work, concerned that the patients might become fearful if they learnt about it. The plaintiff felt that no one at work cared about her. At home, she would frequently lock herself in the house, telephone her husband and ask him to come home from work because she was fearful. When out in the street, she frequently looked over her shoulder, frightened that one of the intruders might be there and recognise her. Her sleep was interrupted and she continued to experience nightmares. The level of her symptoms varied to some degree, increasing after exposure to minor psychological stressors.

1. It is appropriate at this stage to interpolate that for some 18 months the plaintiff kept to herself the sexual aspect of the assault. During this long period she felt ashamed and could not bring herself to mention it although she said in evidence that it was the worst part of the whole affair and afterwards she frequently thought that she might have been raped or killed. Her personality during this period was described by Dr Burgess as vulnerable and exposure to stressors such as the death of the matron at the Lodge and a belief she once entertained that she saw one of the intruders in the street, increased the level of the symptoms suffered by reason of the accident caused post–traumatic stress disorder. However, as stated, the plaintiff continued at work without interruption on a limited basis between 17 July 1985 and 16 February 1986 when she sustained another but unrelated personal injury by accident arising out of and in the course of her employment.

1. Before turning to this accidental injury and its sequelae I make a finding that from 17 February 1985 until 17 July 1985 the plaintiff was wholly incapacitated for work and from 17 July 1985 until 16 February 1986 she was partially incapacitated for work. Counsel did not submit that this finding was not an appropriate one to make.

1. It is now settled that the incapacity for work referred to in the Workers' Compensation Act, s5(1) and Schedule I, r3 is a physical incapacity for doing the work which the employee was doing or might reasonably be expected to do. See Williams v Metropolitan Coal Co Ltd (1948) 76 CLR 431 at p44. In Arnotts Snack Products Pty Ltd v Yacob (1983) 155 CLR 171 the following passage is taken from the majority judgment at p178:

"It follows that the concept of partial incapacity for work is that of reduced physical capacity, by reason of physical disability, for actually doing work in the labour market in which the employee was working or might reasonably be expected to work."

Affirmed in Steggles Pty Ltd v Vandenberg (1987) 72 ALR 545 and applied to the provisions of the Tasmanian Act in Lonergan v Eastwill Pty Ltd & Anor (Full Court 37/1988). Cf Black v Triffett Everett J 3/80 at p11.

1. Payment of weekly compensation in discharge of the liability created by the personal injury is dependent upon a worker bringing him or herself within the provisions of r3 which provides that where incapacity results from the injury the worker is entitled to payment of weekly compensation at the prescribed rate reduced, "in the case of a period of partial incapacity, by the weekly amounts that the worker is earning or able to earn in some suitable employment or business during that period."

1. In the present case there was no evidence of the plaintiff's earnings between 17 July 1985 and 16 February 1986 but, absence of evidence of financial loss does not invalidate the finding that throughout that period the plaintiff was partially incapacitated for work.

1. On 16 February 1986, whilst showering a patient in a bathroom at the Lodge, the plaintiff fell and fractured her wrist. Again, the physical injury was not serious. The plaintiff was taken to hospital and Plaster of Paris applied to the injured limb. The healing of the fracture was uneventful and apart from a slight weakness in the wrist which is of no significance, the plaintiff suffers no residual physical disability from this accident.

1. However, the effect upon her pre–existing post–traumatic stress disorder was marked. The level of the symptoms previously described increased to such a degree that on 28 February 1986 she was admitted as an inpatient to the Hobart Clinic under the care of Dr Burgess. There she remained until 27 March 1986. She continued with drug therapy namely, an anti–depressant, an anti–emetic and a night–time sedating agent although not of the same brands as she had previously been taking. She underwent group therapy and counselling. Whilst an inpatient the symptoms abated somewhat but on discharge they intensified. At first she entertained suicidal thoughts but I gather from her evidence that this is no longer the case but her condition became and remained chronic. She experiences lack of confidence, depression, lethargy, anxiety, shakiness, nausea, nervous rashes and generally an inability to fully cope with her domestic duties at home. She was still continuing with the same drug therapy at the date of trial. It was Dr Burgess' opinion that, by reason of these symptoms, she is permanently incapacitated for work and has been so incapacitated since 16 February 1986. I make a finding accordingly. It was not submitted that any other finding was reasonably open on the evidence.

1. I accept Dr Burgess' evidence generally. He diagnosed the plaintiff as suffering from dysthymic disorder, being a significant depressive illness lasting for longer than six months or so. With respect to the causal link between the traumata and the dramatic change from her pre–morbid personality he said:

"... I think sometimes that people who are fairly strong and robust on the outside can be affected by trauma to a much greater extent than one would expect. It's almost like that something gets in and detonates their internal world view of how the world is made up and what it consists of and so on, and that once that is detonated they kind of have trouble putting the pieces back together. So what I'm saying is that sometimes it's the strong, apparently the strongest people, who, when they do crack, really have the most difficulty."

1. The substantial question for determination on these proceedings is whether the plaintiff's total incapacity for work resulted from the first or second personal injury by accident arising out of and in the course of employment. The plaintiff seeks an order that the defendant pay the plaintiff weekly payments totalling $54,135.70 and other medical expenses.

1. The defence put in issue the allegations pleaded by the plaintiff to support her claim for the order sought and joined CE Heath Underwriting and Insurance (Australia) Pty Ltd as a third party to the proceedings. The evidence established that, by virtue of a policy of insurance between the third party and the defendant, the third party was bound to indemnify the defendant until the 31 December 1985 (inter alia) against all sums for which the defendant may become liable to pay to any of its employees by reason of them suffering personal injury by accident arising out of and in the course of their employment. At the date of the first accident the basic rate referred to in the Act, s3(1) and Schedule I r3(6) was $210.10 and at the date of the second accident, it was $224.40. Thus it can be seen that identification of the injury which resulted in the total incapacity for work will determine the maximum liability of the defendant and the extent of the third party's indemnity under the terms of the policy.

1. Dr Burgess said that the depressive symptoms, being lack of confidence and concentration, were the predominant cause for the total incapacity for work existing since February 1986. He said that after the fracture of the wrist the level of these symptoms increased and this accounted for the plaintiff's inability to work to the degree she had been working just prior to 16 February 1986. Dr Burgess thought that the accident in which the plaintiff fractured her wrist had a marked effect on her. He described it as "the last straw" to break the vulnerable personality set in place by the assault a year earlier. He considered it had an increased effect on the plaintiff's symptomology because it occurred at the same place as the assault and on the eve of its anniversary. He said:

"I think her symptomology certainly worsened at that time [the second incident] that necessitated her hospitalisation in the Hobart Clinic. Now there was some improvement after her stay of about a month or five weeks there due to ventilation and group support and that sort of thing. I think the other thing, if I can just comment, that it probably did undermine to some extent her faith in Strathaven Home because I think in her mind she saw that there were now two occasions on which things had happened to her that were out of her control in Strathaven and I think she felt quite unsafe about returning there."

1. He also said that it appeared that the plaintiff felt that it was unfair that she should suffer a second trauma which destabilised the shaky basis she had established and from which she had been able to work to a limited degree. With reference to the relationship between the second accident and her incapacity to work Dr Burgess further said:

"... Probably most of her symptomology during the time that she was working was basically unchanged, that she was coping with work in a manner of speaking, but that the fracture of her arm, I think, undid all her defences and positive responses that she was trying to build up, and I think in a way it was the straw that broke the camel's back. ... I'm not sure that had she not broken her arm that something else would not have happened to intervene, that she wouldn't have been able to continue work anyway. I guess that's hypothetical, I think her state was such that something else may have happened, but I think the injury to her arm was fairly direct and sudden and affected her quite markedly."

1. The plaintiff's entitlement to payment of weekly compensation is established by the Act, Schedule I, r3(1) which provides:

"Subject to this rule, where total or partial incapacity for work results from an injury sustained by the worker, the compensation payable under this Act is ... a weekly payment at the relevant compensation rate reduced, in the case of a period of partial incapacity, by the weekly amounts that the worker is earning or able to earn in some suitable employment or business during that period."

1. The question is whether the injury sustained on 16 February 1986 resulted in the total incapacity for work. It involves an issue of causation within the meaning of r.3(1). In Darling Island Stevedoring and Lighterage Co Ltd v Hankinson (1967) 117 CLR 19 Barwick CJ said at p25:

"The relevant question in the case of an injury is whether incapacity resulted from it. It is not, as in the case of an action at law based on negligence, what damage has the injured party sustained. Thus cases such as Watts v Rake (1960) 108 CLR 158 and Purkess v Crittenden (1965) 114 CLR 164, insofar as they deal with the possible effect of a pre–existing condition upon the amount of an award of damages in such an action, are not in point in connection with a claim under the Workers' Compensation Act."

1. That "results from" is not synonymous with "caused by" or "contributed to" is apparent from cases such as Salisbury v Australian Iron and Steel Ltd [1944] 44 SRNSW 157; McCann v Scottish Co–operative Laundry Association Ltd [1936] 1 All ER 475; Ward v Corrimal–Balgownie Collieries Ltd (1938) 61 CLR 120; Holmyard v The Marine Board of Hobart Cosgrove J 10/87.

1. In Morris v George [1977] 2 NSWLR 552 the Court of Appeal was required, on a case stated, to determine as a matter of law, whether incapacity or death referred to in the Workers' Compensation Act 1926 (NSW) ss.8 and 9, can result from more than one injury. The material parts of ss8 and 9 are indistinguishable from the Tasmanian Act, Schedule I, rr2 and 3. The dangers inherent in determining questions of law remote from facts found or agreed was adverted to by Moffit PA at p559:

"The question raised before us is a general question, but I have set out with some care how the question arises, because the legal question falls for determination as it arises in the particular case, and also because there is always some danger in determining general questions of law in isolation untested by reference to particular cases."

1. His Honour considered that Noden v Galloways Ltd [1912] 1 KB 46 was authority in England for the proposition that incapacity can result from but one injury and that authority had since been tacitly accepted there and in Australia. His Honour reached the conclusion that in cases of two independent injuries "a decision need[s] [to] be made selecting the injury from which death or incapacity results" but in cases of causally connected injuries it could be found that both injuries resulted in the incapacity or death.

1. All three members of the court were unable to adopt the proposition expressed obiter dictum in Noden (supra) that in all cases when a second injury produces incapacity the whole incapacity results from that second injury. Glass and Hope JJA took a partially different view from that taken by Moffit PA Glass JA summarised the position at p580 as follows:

"1A worker may suffer from a double disability due to two independent injuries which equally incapacitate him. Although neither injury is the only cause, his incapacity for work is, nevertheless, the result of each of them.

2A worker may suffer from a single disabling condition which has been produced by the combined operation of two independent injuries. His incapacity may be treated as the result of both.

3A worker may suffer from an overall incapacity resulting from the combined effect of two disabilities independently caused by two injuries. The employer responsible for part of that incapacity is not responsible for the whole incapacity resulting from the addition to it of the other part."

1. The case went on appeal to the Privy Council, reported [1980] 1 NSWLR 81. The judgment of the Privy Council did not endorse the dictum in Noden as understood by the New South Wales Court of Appeal as being good law. Their Lordships took the view that the reference in that case to contributory cause by Cozens–Hardy MR (p49) and Fletcher–Moulton LJ (p51) was a reference to a causa sine qua non as used by Taylor J in Commonwealth v Butler (1958) 102 CLR 465 at p476. Their Lordships dismissed the possibility that there was room for any artificial rule of law. It is a question of fact in each case. They said at p87:

"It is well established in common law context that an injury or incapacity may be attributable to more than one cause, in the legal sense, operating concurrently. If any authority be required for that proposition, it is sufficient to refer to Baker v Willoughby [1970] AC 467, particularly the speech of Lord Reid at p492 where it is to be observed also that he equiparated the legal view of causation in tort to that in the field of workmen's compensation. Their Lordships are of the clear opinion that there is indeed no difference between the two, subject to the qualification that in a claim for workers' compensation it is unnecessary to prove that the incapacity was the natural and probable consequence of the injury. The question of foreseeability does not arise. It is sufficient that the incapacity which results from the injury by a chain of legal causation unbroken by any novus actus interveniens." [My emphasis]

1. Whether the above statement is good law in Australia is not free from doubt because of the obiter dictum of Deane J in National and General Insurance Co Ltd v South British Insurance Co Ltd & Ors (1982) 43 ALR 273 when he said at p279 having referred earlier in his judgment to Butler v Morris in the Privy Council:

"... The reference to Bushby v Morris, supra, should not be seen as indicating necessary agreement with the view, apparently accepted by the Privy Council in that case, that common law principles of causation are applicable to determine whether it can properly be said, for the purposes of the Act, that a partial incapacity 'results' from a specified injury. In particular, it has not been necessary in the present case to consider whether, contrary to what was said by Taylor J in Commonwealth v Butler (1958) 102 CLR 465 at 476–7, the fact that an injury is a causa sine qua non of incapacity in itself suffices to found a conclusion that, for the purposes of the Act, the incapacity results from that injury."

1. The question was again discussed in the New South Wales Court of Appeal in National Employers' Mutual General Insurance Association Ltd v Calver & Ors [1983] 3 NSWLR 107 in which case Moffit PA expressed the view at p109 that:

"The class of case where the question of contribution could arise in the workers' compensation field ought to be very limited, unless enlarged by factual decisions views yet to be expressed by the High Court (National and General Insurance Co Ltd v South British Insurance Co Ltd, supra) or legislation. On the law as it now stands it should be a rare case where it is found that a specific incapacity has resulted from more than one injury. This is exemplified by the absence here of a decision of fact to this effect prior to 1977, namely until it was decided in the Morris appeals that it was possible to do so in some cases."

See also Pickersgill v Freightbases Pty Ltd reported in the same volume at p117.

1. In my opinion it is unnecessary on the facts of the present case to explore any further the legal complexities involved in the concept of causation as expressed in the provisions of r3(1). The evidence clearly establishes that the total incapacity in respect of which the plaintiff is entitled to be paid compensation resulted from the accidental injury on 16 February 1986. At that date the plaintiff was not wholly incapacitated from work. She did suffer from a post–traumatic stress disorder which rendered her vulnerable to psychological stressors in the same way as a worker with an injured or degenerative spine is vulnerable to suffer incapacity after exposure to physical stressors to the injured part. But the evidence from Dr Burgess is clear that the event which produced the symptomology responsible for the total incapacity for work was the accidental fracture to the wrist. On the evidence, had that event not occurred there is no reason to infer that the plaintiff would have become totally incapacitated for work. It is true that she may have done but, according to Dr Burgess, that is speculative. The evidence supports the conclusion that the chronicity and level of symptoms persisting since 16 February 1986 was directly caused by the application of the psychological stressor being the fall at the place of her employment.

1. As a question of fact I find that the injury sustained on 16 February 1986 resulted in a total incapacity for work within the meaning of r3(1) of the Schedule to the Act. The plaintiff is entitled to a judgment with respect to weekly payments in the sum of $54,135.70. I will hear counsel further before proceeding to final judgment. As the liability to pay the above sum arose on 16 February 1986 the defendant is not entitled to be indemnified by the third party with respect to any part of that sum. The defendant's claim against the third party will be dismissed.