Riley v Deebel Group Pty Ltd
[2024] NSWPIC 414
•1 August 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Riley v Deebel Group Pty Ltd [2024] NSWPIC 414 |
| APPLICANT: | Gary Riley |
| RESPONDENT: | Deebel Group Pty Ltd |
| MEMBER: | Cameron Burge |
| DATE OF DECISION: | 1 August 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; claim for loss of artificial aid pursuant to section 74; applicant fell from a ladder and suffered fractures to his arm requiring emergency surgery; he was conveyed by ambulance to hospital, and before undergoing surgery was requested to remove his dentures to prevent a choking hazard; the dentures were then either lost or inadvertently destroyed by the hospital staff; respondent denied liability for the cost of replacing the dentures, alleging they were not lost in the accident which befell the applicant, and that on a commonsense evaluation of the causal chain, the loss did not occur “as a result of” the accident; Held – no requirement that the loss of or damage to an artificial aid must occur in the course of the accident which befalls a worker; loss need only be “as a result of” the accident; the loss of the applicant’s dentures was as a result of the accident which befell him in the course of his employment; the respondent is to pay the costs of and incidental to the replacement of the applicant’s dentures. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant met with an accident in the course of his employment with the respondent on 19 March 2024 which caused injury. 2. As a result of the accident referred to [1] above, the applicant's dentures were lost. 3. The respondent is to pay the costs of an incidental to the replacement of the applicant's dentures. |
STATEMENT OF REASONS
BACKGROUND
On 19 March 2024, Gary Riley (the applicant) fell from a ladder in the course of his employment with the respondent, Deebel Group Pty Ltd suffering significant injury to his right upper extremity.
On the day of his injury, the applicant was admitted to Bankstown Lidcombe Hospital for surgery, where an open reduction and internal fixation with bone graft and scope was performed on his right distal radius and ulna.
There is no dispute that in preparation for surgery, the applicant was requested to remove his dentures to prevent a choking hazard during the course of the surgery. There is also no issue that during the course of that surgery or thereafter the applicant's dentures were either lost or destroyed by hospital staff.
The applicant brings a claim for property damage for the loss of his artificial teeth pursuant to s 74 of the Workers Compensation Act 1987 (the 1987 Act).
The respondent denies liability for the cost of replacing the dentures. It submits the loss of the dentures was not caused by the accident which befell the applicant, and alternatively if the loss was so caused, it cannot be said to have occurred "as a result of" that accident.
ISSUES FOR DETERMINATION
The parties agree that the only issue in dispute is whether the respondent is liable for the costs of and incidental to the replacement of the applicant's dentures.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
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.
The parties attended a hearing on 30 July 2024. At the hearing, the applicant was represented by Ms Goodman of counsel, instructed by Mr Naddaf. The respondent was represented by Mr Hart of counsel instructed by Mr Cooper.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute (the Application) and attached documents, and
(b) Reply and attachments.
Oral evidence
There was no oral evidence called at the hearing.
FINDINGS AND REASONS
Whether the respondent is liable for the cost of replacing the applicant's dentures
There is no factual dispute in this matter. There is no issue the applicant suffered a serious fall in the course of his employment which required surgery, or that his dentures were either lost or destroyed by hospital staff after being removed at their request before the applicant entered the operating theatre. The matter in dispute is whether the loss of the applicant's dentures is compensable under s 74 of the 1987 Act. That section provides:
“(1) A worker
i)who has met with an accident arising out of or in the course of the worker's employment, and
ii)whose crutches, artificial members, eyes or teeth, other artificial aids, or spectacles, are damaged as a result of the accident,
(2) is entitled to receive, by way of compensation from the worker's employer, the reasonable cost of repairing or, if necessary, replacing the articles so damaged.”
It is a prerequisite to the operation of s 74 that the accident which befell a worker must be an incident of the type which, had it resulted in the worker sustaining injury, would have been compensable: see McNamara v Malco Industries Limited (1964) 38WCR210 (McNamara). In that case, a worker who had taken off his spectacles accidentally caused something to fall onto them, smashing them. The Full Court of the Supreme Court held in those circumstances the applicant was not entitled to compensation, as the accident which broke the glasses would not have caused him injury.
Plainly the circumstances of this matter are distinguishable from those in McNamara. The injury which befell the applicant in this matter, namely the fall from the ladder, in fact resulted in his injury. However, also implicit from the decision in McNamara is the proposition that s 74 can be enlivened in circumstances where a worker was not actually injured.
For the respondent, Mr Hart submitted the loss of the applicant's dentures did not fall within the parameters of s 74. In so submitting, Mr Hart submitted the word “accident” in s 74 should not be dealt with in the way one might approach a question of whether the loss of an item was caused as a result of “injury”, as that term is defined in s 4 of the 1987 Act. Mr Hart emphasised the differential use of the word “accident” as opposed to injury in s 74, and submitted it serves to limit the recovery of compensation to the accidental incident itself. That is, the loss must take place in the accident rather than sometime later.
I do not accept that submission, noting the phrase “as a result of” in s 74(1)(b) addresses the question of causation, not the mere fact a worker has met with an accident arising out of or in the course of their employment.
I was not taken to any definition of the word “accident” within the 1987 Act, and in my view the word should be given its everyday meaning in accordance with the principles of statutory interpretation.
Unlike the word “injury” in s 4 of the 1987 Act, in my view the word “accident” is broader, as there is no requirement for the accident to have caused injury to an applicant for s 74 to apply.
Mr Hart’s submission to the effect the word “accident” was used to differentiate the circumstances in which compensation is payable under s 74 compared with that payable as a result of an “injury” is doubtless correct. However, in my view the distinction is of no benefit to the respondent because the use of the word “accident” broadens the circumstances in which compensation is payable, compared with those in which it is payable for an injury under s 4.
This is because compensation under s 74 can be payable in circumstances where a worker was not themselves injured: see McNamara, above at [12] and [13], and Halket v Port Kembla Stevedoring & Agency Co Pty Ltd (1955) 29 WCR 72 (Halket), where Rainbow J held a worker who had lost his dentures into the hold of a ship as a result of a stumble was entitled to the cost of replacing them.
Incidentally, in Halket his Honour did not think it necessary to find the dentures most probably would have been damaged upon falling some distance in order to enliven the predecessor to the current s 74. Halket therefore stands for the proposition, not contested in this matter, that “damage” to an artificial aid includes the loss of the relevant item.
The respondent submitted for a loss to fall within s 74 it must have taken place in the course of the relevant accident which befell the worker. However, for the following reasons the very wording of the section makes it clear this cannot be the case.
Mr Hart submitted the circumstances of this case were in fact analogous to someone who suffered an accepted leg injury later tripping over because of an altered gait, in turn causing their spectacles to break. The respondent submitted an employer would not be liable for the damage to the spectacles in those circumstances because they were not damaged in the original accident which befell the worker.
In my view the words “as a result of” are far broader than requiring the loss to have been occasioned in the course of the accident at issue.
The parties agree the claim in this matter is not one which falls within s 60 of the 1987 Act for medical and treatment expenses, but rather fits squarely within s 74. Nevertheless, in seeking guidance as to the meaning of the phrase “as a result of”, it is appropriate to examine how the term is interpreted in the context of the workers compensation legislation. To this end, the cases dealing with the phrase “as a result of” in the context of s 60 claims are of assistance.
As with any issue of causation in the workers compensation context, it is necessary to undertake a commonsense evaluation of the causal chain: Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang). The cases make it clear it is necessary only for an injury to have made a material contribution to the need for the treatment sought in order for that treatment to be compensable, and notions of “proximate cause” do not apply: see also Holdlen Pty Ltd v Walsh [2000] NSWCA 87 (albeit that decision related to a claim in relation to a death by suicide).
There seems to me no reason why this principle would not apply to the same wording in s 74. By analogy, the relevant test would be whether the accident which befell the worker in the course of their employment has made a material contribution to the loss of or damage suffered o the artificial aid - in this case the applicant’s dentures.
Mr Hart submitted the fact the surgery which the applicant underwent on the day his dentures were lost took place immediately following the injurious accident is of no benefit to him in the context of this dispute, just as it would be of no benefit to the respondent had the surgery taken place some months or even years later. Rather, what would be required is a value judgement in assessing the causal chain as to whether the loss suffered by the applicant was materially contributed to by the relevant accident.
Although this submission has some superficial appeal, the context in which the applicant underwent the surgery is, in my view, a material consideration in considering the chain of causation.
The applicant was conveyed by ambulance as a matter of urgency from the scene of the accident to hospital, where he immediately underwent surgery. His condition, and the urgency with which it was dealt, in my view materially contributed to the requirement for him to remove his dentures before undergoing surgery and as a result, was a cause of their loss.
Whilst, as Mr Hart noted, the loss was caused by the actions of the hospital staff in either misplacing or destroying the dentures, it is axiomatic to note a condition or loss may have multiple causes: see for example ACQ Pty Ltd v Cook (2009) 237CLR 656 and Taxis Combined Services (Victoria) Pty Ltd v Schokman (2014) NSWWCCPD18. As Roche DP noted in Schokman, the question of whether the need for treatment has arisen “as a result of” an injury is:
“… matter of concluding that, as a matter of commonsense, the injury was a material cause of the need for the proposed treatment…, even if other factors were also present that may have also contributed to that need”. (at [54])
Mr Hart also suggested the actions of the hospital staff in losing or destroying the dentures constituted a novus actus interveniens which broke any chain of causation between the injurious accident and the loss of the dentures.
As Ms Goodman noted, no defence of novus actus was raised in the s 78 notice, and accordingly, in my view that defence cannot be raised. In any event, should I be in error on that point, I do not believe the actions of the hospital staff were sufficient to constitute a novus actus. Rather, they form one part of the causal chain, which includes material contribution by the injurious accident which befell the applicant, and which landed him in hospital.
A novus actus, an intervening act, cuts the chain of causation. The intervening event draws a clear line between the event under consideration and a subsequent state of affairs, so that there is no “commonsense” causation from one to the other. In other words, it is an event that so attenuates the links in a chain of causation that, by a “commonsense” evaluation, that chain is broken. In a workers compensation context of seeking compensation benefits for incapacity, etc, from an injury, a novus actus renders this injury a “mere but for”.
In my view, this is not such a case. Rather, the circumstances of this matter equate with the first category set out by Malcom J in State Government Insurance Commission v Oakley (1990) 10 MVR 570 (Oakley), namely:
“(1) where the further injury [or in this case, loss] results from a subsequent accident [the misplacing of the dentures], which would not have occurred had the plaintiff not been in the physical condition caused by the defendant’s negligence [in hospital with fractures to his arm requiring emergency surgery], the added damage should be treated as caused by that negligence.”
Although Oakley related to notions of causation in the context of claims in negligence, it has been consistently applied in the workers compensation context, for example by the Court of Appeal in Secretary, New South Wales Department of Education v Johnson [2019] NSWCA 321.
In my view, having regard to the circumstances of this matter and applying a commonsense evaluation of the causal chain, the loss of the applicant's dentures was as a result of the accident which he met in the course of his employment with the respondent, and accordingly the respondent will be ordered to pay the costs of and incidental to the replacement of those dentures.
SUMMARY
For the above reasons, the Commission will make the findings and orders set out on page 1 of the Certificate of Determination.
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