Wilkie v Doce Pty Ltd[1997] QDC 204

BETWEEN:

AND:

REASONS FOR JUDGMENT - McGILL D.C.J.

Delivered the 17th day of September 1997

CATCHWORDS:

WORKERS' COMPENSATION - insurance - injury - includes aggravation of a previous injury - whether plaintiff seeking damages at law for an injury - Workers' Compensation Act 1990 ss. 6, 182D.

WORDS AND PHRASES - “injury” - Workers' Compensation Act 1990 ss. 6, 182D.

Zickar v. MGH Plastic Industries Pty. Ltd. (1996) 71 ALJR 32 - applied.

Noden v. Galloways Ltd. [1912] 1 KB 46 - followed.

BETWEEN:

AND:

REASONS FOR JUDGMENT - McGILL D.C.J.

Delivered the 17th day of September 1997

An application was brought before me in chambers for an order that paragraph 14 of the entry of appearance and defence filed on behalf of the defendant be struck out. In order to understand the significance of the application, it is necessary that I set out some background.

Background

By plaint filed on 27 May 1997 the plaintiff claimed damages for personal injury sustained on 14 October 1995 and again on 1 November 1995 in the course of her employment with the defendant. The plaint alleges that on the former date while the plaintiff was performing her duties at the defendant's hotel she was walking out of a walk-in freezer in the hotel when she slipped and fell thereby suffering injuries to the right elbow, right upper arm, right hip, right lateral thigh, and low back. It is alleged that that incident was caused by negligence, breach of contract or breach of statutory duty (in particular ss. 141 and 143 of the Workplace Health & Safety Regulation 1989) on the part of the defendant.

It is further alleged that on 1 November 1995 the plaintiff in the course of her employment, while unlocking and opening a door to gain access to the kitchen area, tripped over several rolled up rubber mats covered with flattened cardboard cartons and again fell. As a result of the fall she suffered injury to the left ankle, and an aggravation to the injuries to the right hip and lower back first sustained on 14 October 1995. It is alleged in the plaint that this incident was caused by negligence, breach of contract or breach of statutory duty (in particular ss. 141 and 143 of the same Regulation) on the part of the defendant.

It is further alleged that on 16 March 1996 the plaintiff, while performing her duties at the hotel, aggravated the injury to her low back by twisting her body in order to place a tray of meat that she was required to lift under a trestle table. It is alleged that a causal association exists between the defendant's earlier breaches of duty, the instances of the injury to the plaintiff's lower back referred to earlier, and the aggravation sustained on 16 March 1996. It is not alleged that this further incident was caused by the negligence or other breach of duty on the part of the defendant. It follows that unless the plaintiff can show that one or other of the earlier incidents was caused by the negligence or other breach of duty on the part of the defendant, and that the consequences of this later incident were caused in the legal sense by such earlier breach, the plaintiff will not recover any damages which relate to the consequences of this further aggravation. If the plaintiff fails to show any breach of duty in respect of either the earlier incidents the action as a whole will fail.

The effect of this is that the plaintiff is claiming that the damages which are recoverable from the defendant as a result of its breach of duty in respect of the two earlier incidents should be assessed by taking into account, as increasing the consequences of those originals injuries and as thereby increasing the damages, the aggravation suffered on 16 March 1996. Reference has been made to this subsequent injury in order to satisfy the plaintiff's obligation to give proper notice to the defendant of any facts alleged to be relevant which would otherwise take the defendant by surprise.

In the entry of appearance and defence filed on 2 July 1997 the defendant did not admit that either of the incidents alleged to have been caused by a breach of duty occurred, and denied that there was any breach of duty on the part of the defendant. The defendant also denied that the plaintiff had suffered as a consequence of the incidents in 1995 the injuries alleged in the plaint to have been suffered. The defendant did not admit the allegations as to the events of 16 March 1996, and the defence continued:

Basis of the application:

On the hearing of the application counsel for the defendant submitted that the power in Rule 109 to strike out part of a pleading should be exercised only when it could be seen that the part to be struck out was obviously unsustainable as a defence. I think this submission is correct. The general approach to the discretion to strike out a pleading is that it should only be exercised when a claim or defence raised is obviously untenable: General Steel Industries Inc. v. Commissioner for Railways (1964) 112 CLR 125 at 129. The merits of the defence including questions of law should not be decided in a summary way prior to trial, unless perhaps they are quite clear, or unless an order has been made under the rules for determination in advance of the trail of a separate question of law. There is no procedure for demurrer under the District Court Rules, and I do not consider the hearing of an application under Rule 109 should be treated as the equivalent of a demurrer or the determination in advance of the trial of a separate question of law. Questions of law should therefore not be decided adversely to the defendant on the hearing of an application under Rule 109 unless a view of the law favourable to the defendant is clearly wrong.

This is not a case where it is suggested that the issue is as to the sufficiency of the pleading; the purpose of the application was to have determined prior to the trial that the point raised in paragraph 14 of the defence was bad in law.

In my opinion for that question to be properly determined it is appropriate for it to be decided as a separate question of law determined in advance of the trial pursuant to Rule 231A, rather than on an application to strike out under Rule 109. I indicated during the hearing that I was prepared to make an order under Rule 231A for the question of whether paragraph 14 of the entry of appearance and defence is a good ground of defence to be determined separately in advance of the hearing. Apart from the fact that the plaintiff needs to know whether she should be seeking a certificate under s. 182D in respect of what happened to her on 16 March 1996, the question is relevant to the proper scope of the action, and is also of some general importance, as I was told there have been no other decisions yet on this point. Counsel for the respondent did not seek an adjournment, although he did take advantage of my invitation to supplement his oral submissions with written reference to relevant authorities.

Statutory provisions

By s. 23 of the Workers' Compensation Amendment Act No. 2 of 1995 (Act No.56 of 1995) the Workers' Compensation Act 1990 (“the Act”)^[1] was amended by inserting s. 182D which relevantly provides:

It is accepted for the purposes of this application that the plaintiff has not received an offer of lump sum compensation under s. 132, nor has the board given to the plaintiff a certificate under s. 182D. By subsection (3) the Board may only, and must, give the certificate if it decides the injury is an injury within the meaning of the Act and was suffered after the commencement, and the degree of the plaintiff's permanent impairment resulting from the injury has been assessed in the way mention under s. 130A(1). If the Board is unable to make a decision it must refer the matter to a Medical Assessment Tribunal and in appropriate cases ask the Tribunal to assess the degree of permanent impairment: Subsection (7). The Board's decision may be appealed as prescribed under the regulations, but a decision of the Medical Assessment Tribunal can not be questioned in any proceedings whatever: Subsection (9). It appears that the reference to “the commencement” is a reference to 1 January 1996: See s. 2 of the 1995 Act. It seems to follow that if what the plaintiff suffered on 16 March 1996 was an injury for the purposes of s. 182D, the effect of s. 182D(1) is that the plaintiff may not seek damages at law for it.

The term “injury” is defined in s. 6 of the Act in the following terms “Injury means personal injury arising out of, or in the course of, employment if the employment was a significant contributing factor to the injury.” It is apparent that the plaintiff's case is that what she suffered on 16 March 1996 arose out of or in the course of her employment, and that her employment was a significant contributing factor to it, since it is alleged in paragraph 23 that she suffered an aggravation that her injury to her low back “whereby”, that is to say, by means of that just referred to, which was the twisting of her body in order to place the tray under the trestle table. If the aggravation of that injury was “personal injury” for the purposes of s. 6(1) what she suffered on that occasion was an “injury” as defined.

Does “injury” include aggravation of an injury?

Counsel for the plaintiff argued that an aggravation of an injury was not an injury and therefore what was alleged did not fall within s. 182D of the Act. The argument was based on the later provisions of s. 6 of the Act. Subsection 6(2) provides that “injury” includes a disease, and, in paragraph (b), “an aggravation or acceleration of a disease if the employment was a significant contributing factor to the aggravation or acceleration.........” The terms of subsection (3) also refer to aggravation or acceleration of a disease, but not aggravation of an injury.^[2] By way of contrast the Commonwealth legislation providing for workers' compensation for Commonwealth employees, the Safety Rehabilitation and Compensation Act 1988, expressly defines “injury” as meaning both “a physical or mental injury arising out of, or in the course of the employees employment” and “an aggravation of a physical or mental injury......suffered by an employee......being an aggravation that arose out of, or in the course of, that employment.....”: s. 4(1). In the Compensation (Commonwealth Government Employees) Act 1971 injury was defined in s. 5 as meaning “any physical or mental injury and includes the aggravation, acceleration or recurrence of any physical or mental injury .....”. It was in the context of this provision that in Australian Telecommunications Commission v. Leech (1982) 44 ALR 441 Fox and Lockhart JJ. said at page 445: “Both as a matter of common sense, and as a matter of construction of the present legislation, ......the aggravation of an injury is distinct from the original injury, and is to be regarded as an injury in itself.” The Victorian legislation considered by the Court in Ogden Industries Pty. Ltd. v. Lucas (1967) 116 CLR 537 also defined injury in terms which expressly included the aggravation of any pre-existing injury or disease.

The fact that other workers' compensation legislation in Australia refers expressly to the aggravation of an injury in a definition of “injury” and the fact that s. 6 refers expressly to the aggravation of a disease, without dealing expressly with an aggravation to an injury, does suggest that the omission of a reference to aggravation of an injury is deliberate.

On the other hand, the current definition of injury in s. 6 of the Act is similar, in omitting any reference to aggravation of an injury, to the definition of “injury” in s. 2.1(1) of the Workers' Compensation Act 1990 as originally passed, and the definition of “injury” in s. 3(1) of the Workers' Compensation Acts 1916-1965, as reprinted in volume 8 of the 1962 reprint. It appears to follow that it has been a long standing drafting practice in Queensland to define injury in terms which expressly extend both to a disease and to the aggravation of a disease, but not expressly to aggravation of an injury. This is not a Queensland peculiarity. A number of provisions from workers' compensation legislation defining the term “injury” are cited in the judgment of the High Court in Zickar v. MGH Plastic Industries Pty. Ltd. (1996) 71 ALJR 32, and they adopt a similar approach. That case concerned the question of whether the rupture of a cerebral aneurism was a personal injury or the aggravation of a disease. There was no doubt that the aneurism, which was attributable to congenital weakness, was a disease, and the question was whether it was therefore an injury only if it came within the provisions extending the concept to a disease or the aggravation acceleration exacerbation or deterioration of a disease, or whether the rupture could itself be regarded as a personal injury. This was significant because in the former case it was necessary for the worker to show that the employment was a contributing factor to the aggravation, whereas if the rupture could be characterized as a personal injury it was sufficient that it arose in the course of employment. By majority the High Court held that the rupture could be characterized as a personal injury, and therefore there was an entitlement to compensation merely because it occurred in the course of employment, even though not caused by it.

The practical result of the majority decision in that case seems to be that under that legislation a person who has an aneurism attributable to congenital weakness and suffers a rupture which is merely the natural consequence of the development of the disease will receive compensation if the rupture happens to occur while the person is at work, but not otherwise. This somewhat arbitrary outcome is avoided under the Act, since the requirement that the employment be a significant contributing factor applied equally to personal injury arising out of or in the course of employment and disease or aggravation of a disease. Accordingly the particular issue which divided the High Court in Zickar (supra) would not matter under the Act.

The approach to the concept of injury in the judgment of the majority in that case appears to be consistent with the views of Dixon CJ. in Kavanagh v. The Commonwealth (1960) 102 CLR 547 at 553, that a sudden destruction of tissue by force or pressure was an injury. I think that the same would apply to sudden damage to tissue by force or pressure. Although the High Court was not concerned with the question of whether an aggravation of a previous injury was a personal injury, its seems to me that the general approach of at least the majority in Zickar (supra) is consistent with the idea that an event which can be characterized as a personal injury does not lose that characterization because the tissue which is damaged or destroyed has been previously damaged, or because the damage or destruction can also be seen as a consequence of prior damage or destruction to other related tissue. What matters is whether there has been something which can be characterized as a personal injury; if there is it does not lose that characterization because it could also be characterized, and perhaps more naturally would be characterized, as an aggravation of something already present.

It must be remembered that the term “injury” as defined in s. 6 has significance in the Act which goes beyond s. 182D. Section 44(1) of the Act provides: “An employer is legally liable to pay the compensation prescribed to be payable from the fund in respect of injury suffered by a worker employed by the employer.” Section 88 provides inter alia: “A worker who suffers an injury arising out of or in the course of the worker's employment is entitled ...... to be paid from the fund compensation in accordance with this Act.” Section 89 speaks of an injury as something in respect of which there is an entitlement to compensation under the Act. Section 90, which operates subject to ss. 182B and 182D (subsection (2) provides in subsection (1):

This section indicates that an injury is something in respect of which a worker may have not only an entitlement to compensation under the Act but also a right of action against the worker's employer or some other person to recover damages (see also s. 44(2)(b) and the definition of “accident insurance” in s. 5(1)). I do not suggest that this means that an injury is anything in respect of which a right of action to recover damages could arise independently of the Act. In the present case the plaintiff alleges that there had been an earlier injury suffered in the course of employment, and caused by that employment (indeed by the negligence of the employer) and in such circumstances it is plausible to characterize a later deterioration provoked by doing something at work as being an aggravation of the earlier injury and not something which would give rise to fresh or additional rights under the Act. It is not difficult however to imagine a case where the worker suffers an injury which is not compensable, but the injury is subsequently aggravated in the course of employment with the employment being a significant contributing factor to the aggravation. Consider a case where a person injures his back in a private motor vehicle accident, and subsequently while at work is directed to lift something which is too heavy for him, attempts to do so, and thereby applies force to the spine which causes damage to the tissue in the back. It may well be that in the medical sense what has occurred is an aggravation of the previous injury. But I think it would be inconsistent with the general approach of workers' compensation legislation, and the way in which it has been construed by the Courts, to say that in those circumstances because what occurred at work was an aggravation of an earlier injury rather than an injury suffered by a part of the body which had previously been uninjured there was no injury for the purposes of the legislation. Such an approach would be inconsistent with the known policy of workers' compensation legislation to give the language a broad construction because it is intended to be beneficial legislation. In substance I am being asked to read the definition of “injury” narrowly, by excluding an aggravation of an injury, because of the terms of the extension to that definition contained in s. 6(2)(b). Such an approach is not consistent with that policy: Favelle Mort Ltd. v. Murray [1976] 133 CLR 580 at 589 per Berwick CJ.

It is also inconsistent with long standing authority in England in the field of workers' compensation law. In Noden v. Galloways Ltd [1912] 1 KB 46 a worker had suffered an injury to the hand in an accident in 1902, which left him with some permanent disability to the hand. He continued in employment, doing a different kind of work, and in 1910 as a result of a change in the equipment used developed pain and other problems with the injured hand which were characterized as an aggravation of the earlier injury. The issue was whether the workers' compensation insurer which had issued the policy applicable at the time of the 1902 accident was liable for compensation payable in 1910, or whether it was the insurer under the policy current in 1910. The court held that the condition developed in 1910 fell within the definition of injury and ought therefore to be treated as an injury giving a right to compensation under the act, so that the 1910 insurer was liable. The decision was cited by Knowles “The Law Relating to Workmen's Compensation” (4th Edition 1925) at page 24 as authority for the following: “If a workman who is already suffering from some disability consequent upon a previous accident is incapacitated by a second accident, it is not relevant to enquire whether the first accident was a contributing cause to the present incapacity. The incapacity must be ascribed to the second accident alone, even though the consequences of the latter may be greater by reason of the first accident.” The decision seems to me to be consistent with the proposition that so long as the second incident falls within the definition of “injury” it is to be treated as an injury for the purposes of workers' compensation legislation, even if it could also be seen as the aggravation of an earlier injury.^[3] Such reasoning parallels that of the majority of the High Court in Zickar (supra) that something which falls within the definition of “personal injury” is an injury even if it could also be characterized as the aggravation of a disease, and therefore an injury under the extended definition. The point is different, but the underlying approach is the same. In my opinion therefore the term “injury” does include an aggravation of a previous injury, in the sense that something which falls within the concept of “personal injury” as that concept is properly understood in the light of the authorities^[4] is not excluded from the defined term “injury” because it can also be said to be an aggravation of a previous injury.

Is the plaintiff seeking damages at law for that injury?

In the present case what is alleged is that the plaintiff suffered an aggravation of the previous low back injury on 16 March 1996 and this was caused by her twisting her body in order to place a tray under a trestle table in the course of her employment. The question of whether that aggravation is a personal injury for the purposes of s. 6 is a matter which probably requires medical evidence to determine, just as medical evidence was relied on by their Honours Toohey, McHugh and Gummow JJ. in Zickar (supra) at page 43 in determining that the rupture there under consideration constituted personal injury. It is however in my opinion not necessary to decide that question because, for reasons I shall state in a moment, assuming that what occurred to the plaintiff's back on 16 March 1996 was a personal injury and therefore an injury as defined by s. 6, and hence an injury for the purposes of s. 182D, that section does not afford a good defence to the defendant because the plaintiff is not seeking damages at law for that injury.

As I have earlier indicated, what the plaintiff is suing for is damages for negligence or breach of contract or breach of statutory duty. All of these causes of action require, before the plaintiff can succeed, proof of the failure on the part of the defendant to comply with some obligation on it in respect of the plaintiff's employment. The different causes of action alleged in the alternative are based on obligations imposed by law because of the existence of the relationship of employer and employee (in the action for negligence), or voluntarily undertaken by entering into a contract of employment containing implied terms of imposing those obligations (in the action for breach of contract), or imposed by legislation (in the action for breach of statutory duty). If the plaintiff can show a breach of contract, the plaintiff is entitled to nominal damages but will receive substantial damages only if the plaintiff can prove that some damage has been caused by the defendant's breach. In respect of the other two causes of action proof of damage caused by the breach is a necessary element of the cause of action. In my opinion the reference in s. 182D to seeking damages at law for an injury is a reference to the right recognized by s. 90 to pursue a cause of action to recover damages independently of the Act in respect of an injury suffered. Such a right is not one conferred by the Act, but the Act recognizes the right and regulates its exercise. There will be such a right of action only where all of its elements are present. In each case one which must be alleged is a breach of an obligation on a part of the employer (or other person) arising independently of the Act, which breach has caused the injury.

In the present case breach of obligation is alleged in respect of what happened to the plaintiff on 14 October 1995 and what happened to the plaintiff on 1 November 1995 and the plaintiff is therefore pursuing rights or causes of action against her employer to recover damages independently of the Workers' Compensation Act 1990 in respect of the injury suffered on those occasions. It is not alleged that what occurred on 16 March 1996 was the consequence of any breach of any obligation on the part of the defendant. It follows that the plaintiff is not alleging a right of action against the defendant to recover damages in respect of any injury suffered on 16 March 1996. In my opinion when s. 182D(1) speaks of seeking damages at law that is a reference to pursuit of the right recognised by s. 90(1)(b) of the Act. That is the natural meaning of the words used, reinforced by the terms of s. 90(2). In my opinion therefore the plaintiff is not in this action seeking damages at law for that injury, assuming it is one.

It is not correct to say that s. 182D will come into operation whenever there is an aggravation of a pre-existing injury after the commencement; it will only come into operation if a worker wants to seek damages at law for the injury constituted by that aggravation.

Conclusion

If there was no “personal injury” suffered by the plaintiff on 16 March then s. 182D does not give a good defence. But assuming there was, s. 182D still does not give a good defence to the causes of action pleaded in this plaint, because the plaint does not seek damages at law for that injury. What it does seek of course is to recover all of the loss and damage which the plaintiff has suffered which was caused in the relevant sense by either or both of the sets of injuries suffered during 1995, because it was those injuries which are alleged to have been caused by the negligence or other breach of duty on the part of the defendant. The fact that something has happened to the plaintiff's back since then is a relevant fact to be taken into account in assessing damages, in the same way as any other event which occurs between the date of the injury the subject of the claim and the trial is properly taken into account. To the extent that the plaintiff's loss suffered after 16 March 1996 is properly attributable, within the ordinary principles of causation, to the injury sustained on 14 October 1995 and 1 November 1995 the damages assessed in respect of those injuries, will take it into account.^[5] I do not consider that it is necessary for the purposes of determining the present application to decide anything as to how those principles should be applied in the present case. That is therefore a matter which should be left to the trial Judge. Given the nature of this application it is not appropriate for me to say anything further about it.

All I am deciding is the question of whether paragraph 14 of the entry of appearance and defence is a good defence to the plaintiff's claim as presently pleaded, or indeed any part of it. In my opinion for the reasons that I have given it is not.

I therefore: