WA Insurance update – Issue 3

Contents

Workplace injuries

Pre-existing injury at work found not compensable
Court confirms burden of proof and test for causation in workers’ compensation
Solicitor’s failure to identify correct defendant denies plaintiff’s claim
Strict termination notification requirement confirmed
High Court confirms ‘but for’ test for causation

Manufacturer’s liability

Careless acts not reasonably foreseeable

Motor vehicle accidents

Turning driver not negligent in collision with overtaking motorcycle

Medical malpractice

Patient loses claim that doctor’s failure to diagnose and treat melanoma caused early death

Occupiers’ liability

Another collapsing chair results in award of damages

Battery and intentional infliction of harm

Cultural norms considered in evaluation of tortious conduct

Fast facts

Changes to the WorkCover WA Guidelines for the evaluation of permanent impairment
Injured workers entitled to PBS medications
Changes to regulations for medical and allied health fees

Workplace injuries

Pre-existing injury at work found not compensable

The District Court has dismissed a worker’s appeal against an arbitrator’s finding that she had not suffered an ‘injury’ as defined in the Workers’ Compensation and Injury Management Act 1981 (WA) (Act).

In 2010 Ms Slater fractured her ankle at work. In 2011 and while at work with a new employer, BHP Billiton Iron Ore Pty Ltd (BHP), she walked across a flat surface to fill up her drink bottle when her left ankle just ‘gave way’ and she developed bruising and swelling. There was no specific report of her twisting or stepping on uneven ground. Ms Slater was severely overweight and had flat feet.

After BHP denied liability on the basis that she did not suffer an ‘injury’ as defined in the Act, Ms Slater lodged an application for weekly payments and medical expenses.

The arbitrator found that Ms Slater’s injury was the natural progression of a pre-existing morbid condition and did not constitute an injury by accident under the Act. Although it occurred while she was at work, there was strong evidence suggesting it would have happened wherever she was and that no particular incident or activity would have accelerated or contributed to that incident at that time. The arbitrator therefore dismissed Ms Slater’s application.

His Honour District Court Judge Parry refused Ms Slater leave to appeal. Ms Slater contended that the arbitrator failed to apply Ansett Transport Industries (Operations) v Srdic (1982) 66 FLR 41 in determining whether there had been a personal injury by accident. His Honour found that, while the arbitrator did not cite Srdic or explicitly discuss the principles, his decision was consistent with Srdic. The arbitrator found that Ms Slater had not proved that it was more probable than not that she suffered a ‘personal injury by accident’ in 2011 as he was not satisfied on the evidence that the 2011 incident was in some way attributable to or associated with some incident of her employment.

His Honour found that in light of the evidence that her injury was the product or manifestation of instability and degenerative changes in her left ankle resulting from the 2010 injury, lack of active post-trauma rehabilitation and biomechanical dysfunction, she had failed to prove that the injury and symptoms reported were significantly related to her employment with BHP.

His Honour further found that the arbitrator’s reasons need not canvas all factual and legal arguments or issues. The arbitrator’s reasons were legally adequate and enabled the parties to understand the result. Ms Slater’s application was dismissed because she failed to prove that it was more probable than not that she sustained an injury within the meaning under the Act. The decision was found to be correct on the evidence before the presiding arbitrator.

This decision provides a practical example that, to be compensable, an injury must be in some way attributable to or associated with some incident of the worker’s employment. The medical evidence in this case was unanimous that the worker was suffering a pre-existing disease and that her injury was the natural progression of that disease and would have occurred irrespective of the work activity (walking on a flat surface). This is in contrast to the recent decision of Massih v Electricity Networks Corporation t/as Western Power [2016] WADC 146 where there was insufficient evidence that the injury would have occurred in any event.

Slater v BHP Billiton Iron Ore Pty Ltd [2016] WADC 148


Court confirms burden of proof and test for causation in workers’ compensation

A District Court judge has clarified the test of causation in circumstances where a worker claims medical expenses for treatment of a pre-existing condition.

Mr Massih had an accepted workers’ compensation claim for injuries to his neck, lower back and left knee sustained when he fell through a floor damaged by white ants while working for Western Power on 14 April 2014.

In 2015 Mr Massih was diagnosed with osteoarthritis of the left hip and hip replacement surgery was recommended. He lodged an application seeking funding for the surgery and related expenses. The arbitrator dismissed the application on the grounds that there was insufficient evidence to prove that the hip problems were caused by the work accident.

On appeal, Mr Massih contended that:

  • the arbitrator had failed to consider whether the left hip injury occurred on 14 April 2014
  • the arbitrator incorrectly required him to prove his case on a balance of probabilities to the higher standard of satisfaction applied in Briginshaw v Briginshaw (1938) 60 CLR 336 and
  • the arbitrator should have applied the but for test in determining whether Mr Massih’s hip problems were caused by an injury received during the accident at work.

Her Honour District Court Judge Schoombee found that the arbitrator had erred in applying the standard of proof in Briginshaw v Briginshaw in the workers’ compensation jurisdiction as this test is more onerous that the ordinary ‘on the balance of probabilities test’ and specifically deals with the higher level of satisfaction required in cases which involve serious allegations of ‘moral delinquency’.

Her Honour rejected the contention that the but for test should have been applied and stated that the principles regarding the burden of proof in tort law are to be applied to workers’ compensation cases such that:

  • Mr Massih carried the legal burden of proving his incapacity was caused, in the sense of materially contributed to, by the work injury and
  • Western Power had the evidentiary burden to show that there were pre-existing conditions which would in any event have resulted in the incapacity manifesting itself at that time.

Her Honour also found that Western Power had not presented evidence that the pre-existing osteoarthritis condition would have resulted in the same symptomology in 2015 regardless of the workplace accident. Her Honour was persuaded on the balance of probabilities that the pre-existing osteoarthritis of the left hip was rendered symptomatic because of the work accident in 2014 and that Mr Massih was entitled to funding for his surgery and related expenses.

This decision is somewhat controversial because the arbitrator did not expressly apply the higher Briginshaw v Briginshaw standard and the principle that ‘he who asserts must prove’ clearly applies to WA workers compensation cases (Mitchell v Canal Rocks Beach Resort [2002] WASCA 331 / Mayne Nickless v Mayne unrepresented CCT Lib No. 960736.) It otherwise serves to highlight the importance of obtaining positive evidence that a pre-existing condition would have resulted in the symptoms or incapacity irrespective of the workplace accident, as it is not sufficient if the worker has not provided evidence that the pre-existing condition would not have done so.

Massih v Electricity Networks Corporation t/as Western Power [2016] WADC 146


Solicitor’s failure to identify correct defendant denies plaintiff’s claim

The District Court has dismissed an application to extend time to commence an action in a personal injury claim, including a labour hire scenario.

Ms Bee wished to sue the owners of a business called Albany Traffic Control, the host employer. Albany Traffic Control was known by both Ms Bee and her solicitors prior to the expiration of the relevant limitation period. The solicitors for Ms Bee’s employer had indicated to her solicitors that the owner ofr the host employer was Advance Traffic Management (WA) Pty Ltd (Advance). Ms Bee then commenced proceedings within the limitation period against her employer and Advance. After the limitation period expired, the solicitors for Advance advised Ms Bee’s solicitors that it was the wrong company. The business name ‘Albany Traffic Control’ had been sold to Advance after the accident.

Ms Bee’s solicitors then requested a copy of the contract between the employer and the host employer which identified the correct entity as ACN 116 198 460 Pty Ltd, which at the time of the accident had been trading as ‘Albany Traffic Control’.

In order to extend time under section 39(3) of the Limitation Act 2005, Her Honour considered:

  • what ‘to establish that person’s identity’ means
  • what is a reasonable inquiry in Ms Bee’s context and
  • whether the knowledge of her solicitors is imputed as being knowledge of her own.

Counsel for the defendant argued that the section did not apply if the identity of the person responsible is known and, if the details of the responsible person were not known, then a routine search should have been conducted. Counsel referred to Cressey v E Timm & Son Ltd [2005] 1 WLR 3926 where the claimant argued ‘identity was not synonymous with name’ and that if a party had made a genuine mistake as to the name, then that party could obtain leave from the court.

The issue was whether the precise name of the company was something that Ms Bee’s solicitors should have known prior to the expiration of the limitation period. The solicitors made reasonable inquiries and the error was in the name of the company. Her Honour found it could not be Ms Bee’s imputed knowledge that the company search conducted was wrong. Ms Bee would have assumed that her solicitors made reasonable inquiries in relation to the company name. Her Honour found that Advance was a genuine mistake as to the name of the relevant company. Her Honour raised the option of seeking an amendment to the name of the defendant rather than proceeding with the application; however, Ms Bee’s counsel declined and proceeded with the application.

This case highlights the importance of due diligence in ascertaining the correct entity of a potential defendant because if the limitation period has passed, an error of identity is not sufficient to allow a extension to the limitation period. However if the plaintiff has made a genuine mistake as to the name of the defendant, then it is an error in name and not an error of identity. This is an error of the type envisaged by order 21 rule 5 of the Supreme Court Rules 1971 which can be corrected by amendment.

Bee v ACN 116 198 460 Pty Ltd [2016] WADC 152


Strict termination notification requirement confirmed

The District Court has confirmed the need for employers to strictly comply with section 93O of the Workers’ Compensation and Injury Management Act 1981 (WA) (Act) in giving workers notice of their termination date.

As highlighted in our July 2016 insurance update, Ms Reale lodged an election at WorkCover to pursue common law damages and then commenced proceedings against her employer, Wesfarmers Kleenheat Gas Pty Ltd (Kleenheat). Kleenheat applied to have the proceedings dismissed, contending that the Court did not have jurisdiction to make an award of damages as WorkCover had not had the power to extend Ms Reale’s ‘termination day’.

Ms Reale had been granted an extension by WorkCover on the basis that the notice had not been provided to her within the strict 14 day ‘window’ prescribed by the Act. The Court determined the initial termination day, which involved consideration of the date on which the ‘claim for compensation by way of weekly payments’ was made on the employer.

The Court held that the claim form constituted a claim for weekly payments, despite the fact that weekly payments did not commence until more than three months after the claim was made. At the time the claim form was lodged, Ms Reale had also signed an authority permitting the payment of leave entitlements while a decision was made on her claim. This persuaded the Court that she was claiming weekly payments.

The Court accepted that section 93O had not been complied with as the notice advising Ms Reale of the termination day had been provided around three weeks before the start of the 14 day ‘window’ for providing notice. The Court therefore accepted that WorkCover had the power to extend the termination day and the Court had jurisdiction to make an award of damages.

On appeal, Kleenheat’s solicitors contended that WorkCover had miscalculated the termination day. Kleenheat contended that Ms Reale should have known or could have inferred that payments had commenced within the initial three month period. Kleenheat also contended that, as it was self insured, no actual notice was required to be given to Ms Reale due to the specific provisions of section 57B of the Act.

His Honour Judge Stevenson rejected these contentions, finding that there was no evidence that weekly payments had been made prior to a second notice being issued to Ms Reale some months after she lodged her claim or that WorkCover had been notified that weekly payments had commenced as required by section 57C. His Honour observed that workers need ‘to know with certainty and actual knowledge that liability for the claim is accepted’.

His Honour held that the statutory obligation imposed on self-insured employers to make weekly payments if liability is accepted (which is different to the obligation on insured employers to provide written notice that liability is accepted) ‘does not preclude the existence of a separate obligation under section 93M(3)(b) to notify the worker that liability is accepted’.

The decision confirms the importance of strict compliance with the 14 day ‘window’ in giving workers notice of their termination date. It is also of particular interest to self insured employers and agents. While some self insured employers are already notifying injured workers that liability is accepted for weekly payments of compensation notwithstanding the provisions of section 57B, those who are not would be best advised to do so in order to avoid any uncertainty as to the applicable termination day.

Reale v Wesfarmers Kleenheat Gas Pty Ltd [No 2] (2016) WADC 153


High Court applies objective causation test to ‘reasonable administrative action’ defence.

The High Court has considered the test for causation for a workplace psychiatric injury.

Peta Martin was a producer of a local morning radio program of Australian Broadcasting Corporation (ABC) in Renmark, South Australia. Ms Martin did not have a positive working relationship with the presenter of the program, Bruce Mellett, so applied for a number of positions with different employers and alternative positions with ABC.

Ms Martin was interviewed by a panel (which included Mr Mellett) for the position of cross media reporter with ABC. She was not successful in obtaining the position and was advised that she would be required to return to her previous position, under the supervision of Mr Mellett. Ms Martin was subsequently diagnosed with an adjustment disorder and certified totally unfit for work.

Comcare disputed liability for Ms Martin’s claim on the basis that her injury resulted from reasonable administrative action and was thereby precluded from the definition of ‘injury’ in section 5 of the Safety Rehabilitation and Compensation Act 1988 (Cth) (SRCA). Ms Martin appealed this decision to the Administrative Appeals Tribunal, contending that the adjustment disorder was due to the realisation that she would return to Mr Mellett’s supervision, and unrelated to her failure to obtain the position of cross media reporter.

The Tribunal Members found that Ms Martin’s mental condition deteriorated significantly when she was notified that she had not been appointed to the position of cross media reporter. They also found that as a consequence of administrative action but was not ‘reasonable’ due to Mr Mellett’s involvement in the decision-making process.

Comcare appealed to the Federal Court. Justice Griffiths determined that the Tribunal had erred in law in forming its conclusion that the decision not to appoint Ms Martin was not reasonable. Ms Martin cross appealed the Tribunal’s conclusion that her condition was a result of that decision.  Justice Griffiths found that there was no legal error in the Tribunal’s conclusion that her condition was a result of that decision.

Ms Martin then appealed to the Full Court of the Federal Court, which upheld Ms Martin’s appeal in relation to the Tribunal’s conclusion that her disease was suffered as a result of that decision as the Tribunal had failed to apply common sense to the facts as it found them.

Comcare appealed to the High Court on the basis that the Full Court incorrectly applied the test of causation required to meet the exclusion in section 5 of the SRCA. The High Court unanimously held that the Full Court had erred in applying the test of causation, stating that the Full Court had adopted a ‘common sense’ notion of causation, which did not adequately give regard to the statutory text and purpose of the SRCA.

The High Court held that the administrative action need not be the sole cause and that the casual connection is met if, without the administrative action, the employee would not have suffered the ailment or aggravation that was contributed to, to a significant degree, by the employment.

The Court had regard to an amending bill, the purpose of which was to ‘ensure that the wide range of legitimate human resource management actions, when undertaken in a reasonable manner, do not give rise to eligibility for workers’ compensation’. The High Court stated that this purpose would be defeated if the operation were dependant upon the subjective psychological drivers of the employee’s reaction.

The High Court dismissed the appeal which has the effect of restoring the orders made by Justice Griffiths which included orders that the matter be remitted to the Tribunal.

The High Court has confirmed the ‘but for’ test for causation and that it is not a ‘common sense’ notion in the context of the Comcare legislation when applying the ‘reasonable administrative action’ defence in stress claims.

Comcare v Martin [2016] HCA 43


Manufacturer’s liability

Careless acts not reasonably foreseeable

The District Court has dismissed a claim against a designer and manufacturer of machinery, finding that the risk of injury from the careless and negligent acts of third parties was not reasonably foreseeable.

On 16 February 2014 Andrew Simpson and another driver were working at Golden Grove Gossan Hill open pit mine, driving loaders with a stemming bucket attached, and backfilling drilling holes. The discharge chute on the stemming bucket driven by the other driver became blocked. Mr Simpson made his way over to the other loader, under the suspended stemming bucket, and attempted to remove the obstruction by reaching his left hand up into the discharge chute. The driver of the loader inadvertently engaged the hydraulically operated sliding gate in the discharge chute while Mr Simpson’s left hand was in the chute, causing him severe amputation and laceration injuries.

Mr Simpson brought a claim against his employer, Alliance Contracting Pty Ltd (Alliance), for negligence, breach of statutory duty and damages. Alliance brought third party proceedings against the manufacturer and supplier of the stemming bucket, Friob Pty Ltd (Friob), claiming Friob’s negligence, breach of contract and breach of statutory duty caused or contributed to Mr Simpson’s injury. The parties consented to judgment against Alliance. Alliance then sought a contribution from Friob towards the settlement paid to Mr Simpson.

District Court Judge Stone determined that Alliance failed to establish that Mr Simpson’s injuries and loss were caused by any breach of contract, breach of duty or breach of statutory duty by Friob and that Friob was not a party that is, or would if sued have been, liable to Mr Simpson in respect of the settlement sum.

In reaching that decision His Honour accepted that an Australian Standard represents the consensus of professional opinion and practical experience as to sensible safety precautions and a standard of reasonable conduct: Onetech Pty Ltd v Shaw [1999] WASCA 289 [17]; Fitzpatrick v Job t/as Jobs Engineering [2007] WASCA 63 [17]. His Honour was of the opinion that warning labels on or in the stemming bucket pointing out the location of the pinch point on the discharge chute would be impractical because they would be subject to abrasion and removal during normal operation and to being covered in dirt because of the nature of the mine site environment. The most practical location of warning labels was inside the cabin of the loader.

His Honour agreed that Friob clearly had a duty of care to Mr Simpson to design and manufacture the stemming bucket in a manner that avoided reasonably foreseeable risk of injury. In particular, he noted that an operator/driver of a loader with a stemming bucket would have appreciated, as obvious and extremely dangerous, the risk posed in approaching another loader while in operation, standing under an unsecured suspended load in the bucket, and inserting his hand or arm into the discharge chute to manually clear a blockage. At the very least, if the blockage cleared he would need to avoid the sudden flow of the 4½ to 5 tonne of stemming material.

Accordingly His Honour considered that, in the circumstances, it was not reasonably foreseeable to Friob that loader/operator/driver employees of Alliance such as Mr Simpson may use a variety of methods to clear a blockage at the gate of the discharge chute and they could carelessly or deliberately insert their hand or arm into the discharge chute in an attempt to manually clear a blockage at the gate.

This case highlights that in many cases careless or negligent acts may fall outside the scope of foreseeability for a manufacturer’s duty of care relating to fitness for purpose.

Simpson v Alliance Contracting Pty Ltd [2016] WADC 158


Motor vehicle accidents

Turning driver not negligent in collision with overtaking motorcycle

The NSW Court of Appeal has allowed an appeal in a claim involving a turning vehicle colliding with an overtaking motorcycle on a country road, as the evidence failed to establish that the claimant’s injuries were caused by the turning driver’s breach of duty.

The finding of liability turned on the two drivers’ conduct over a period of less than 30 seconds prior to the crash. The turning driver, Ms Dent, checked for approaching traffic, put on her right indicator and, as she turned into a driveway, she collided with Mr Calcagno’s overtaking motorcycle.

The trial judge identified two issues. Firstly, how long was Ms Dent’s indicator activated prior to impact and, secondly, what was the speed of Mr Calcagno’s motorcycle before he braked? The conclusions of experts were held to be imprecise and the serious injuries Mr Calcagno suffered in the crash affected his recollection of the events. The trial judge found Ms Dent’s account to be consistent throughout and that the variations in her estimates were not significant inconsistencies.

At trial Ms Dent was found liable, with a 25% discount for contributory negligence. Ms Dent appealed the decision and Mr Calcagno cross appealed the finding of contributory negligence.

The question on appeal was what precautions a reasonable person in Ms Dent’s position would have taken to avoid the risk of harm. Mr Calcagno alleged that Ms Dent had breached her duty of care by failing to look behind her before executing the right turn. However, the evidence from the experts did not suggest that if she had given adequate notice to following vehicles of her intention to turn right, the exercise of reasonable care also obliged her to look in the rear vision mirror to ascertain whether vehicles were approaching or attempting to overtake.

On appeal it was found that Ms Dent was not negligent in failing to check her rear vision mirror. The evidence did not suggest that the crash would have been avoided if she had done so. The period of her signalling right gave any vehicle approaching from behind sufficient indication of her intentions; given Mr Calcagno had an uninterrupted view of her vehicle, he should have initiated a pre-emptive response.

This decision neatly illustrates the ‘reasonable person’ test in that Ms Dent complied with road rules and gave sufficient warning before executing a right turn. Even though she failed to look in her rear vision mirror, it does not mean she departed from the requisite standard of care of a driver.

Dent v Calcagno [2016] NSWCA 289


Medical malpractice

Patient loses claim that doctor’s failure to diagnose and treat melanoma caused early death

The NSW Supreme Court has dismissed a patient’s claim that a general practitioner misdiagnosed a melanoma, and has indicated that even if he did so it could not be proven that the breach caused the metastasis.

In September 2009 the patient consulted his general practitioner about a painful lesion on his foot which was diagnosed as a plantar wart and he received cryotherapy treatment until September 2010. He then consulted another general practitioner on 4 January 2011 and his lesion continued to be treated as a plantar wart until 24 February 2011, when the lesion’s pigmentation had changed. By 11 March 2011 a second lesion was observed and the pigmentation of the original lesion had grown darker in colour. A biopsy confirmed the lesion was a stage 3 melanoma with nodal involvement and metastatic spread was only detected in June 2011. The patient died on 23 May 2012.

Justice Davies rejected evidence from the patient and his wife about the lesion appearing darker in colour and growing in size during the period his general practitioner was treating it as a plantar wart. His Honour preferred the contemporaneous notes of the general practitioners that recorded that the lesion was shrinking, and their oral evidence that they were conscious of the significance of pigmentation in the lesion and would have altered the treatment had that occurred.

The expert opinions were largely in agreement that the patient likely had a wart-like lesion that coexisted with the actual melanoma found on the biopsy, but it was impossible to determine which lesion precipitated the other. Justice Davies held that the diagnosis and treatment of the lesion as a plantar wart was consistent with its appearance at that time, and was considered widely accepted practice by the expert general practitioners.

On the question of causation, Justice Davies held that the relevant harm the patient needed to prove was that the general practitioners’ breach had caused the metastasis of the melanoma leading to his early death. If the patient proved that he had a melanoma and that it had not metastasised while the general practitioners were treating his lesion as a plantar wart, the expert evidence supported the finding that an early excision of the melanoma would have allowed him to lead a normal life.

Although some of the expert oncologists considered that the melanoma was present at the time the general practitioners were treating his lesion, none of the experts could say when metastatic disease was first present i.e. when it metastasised. As such the patient failed to establish causation.

This decision reaffirms the difficulties faced by patients in establishing causation where medical practitioners fail to diagnose and treat a cancerous condition. Even if the patient had managed to lead expert or epidemiology  evidence on the likelihood of his survival had the melanoma been excised earlier, he would have suffered a lost chance for a better medical outcome which is insufficient to establish liability pursuant to Tabett v Gett. Further, he would also need to contend with the very real possibility of a recurrence of the melanoma even if it had been excised earlier.

Coote v Kelly; Northam v Kelly [2016] NSWSC 1447


Occupiers’ liability

Another collapsing chair results in award of damages

The NSW District Court has awarded damages to a customer whose chair collapsed at a Kmart store.

Ms Lewis suffered injuries on 10 January 2014 when a green plastic chair she was sitting on in the store’s photo lab section suddenly collapsed beneath her.

Prior to the accident, one of the four ‘lab chairs’ had been broken. Kmart made no effort to furnish the photo lab with extra chairs to accommodate its customers. District Court Judge Gibson found that this encouraged frustrated customers to use green plastic chairs from the nearby garden department.

The garden chairs were not intended for commercial use. Underneath each chair was a warning that it was designed for domestic use and not to be placed on a polished floor. There were no systems or signs designed to prevent customers from taking chairs from the garden department to the photo lab. Kmart staff members knew they had to regulate and control equipment used within the store both by staff and customers to avoid accidents in such a busy store, but that did not occur.

With the lab reduced to three chairs during the post-Christmas sales, the store did not close a kiosk or urgently organise a suitable replacement chair. To keep the photo lab (and its income) flowing, Kmart and its staff allowed the development of a haphazard system of customers taking chairs for sale in other departments (itself a breach of store policy) for use in circumstances where those chairs were unsuitable to the point of being dangerous.

Her Honour was satisfied that Ms Lewis had established a breach of duty of care and that Kmart had failed to provide adequate seating for its customers in the photo lab, training for its staff and regulation of equipment use.

This case illustrates the application of the NSW Civil Liability Act which is similar to the WA Civil Liability Act. This case is consistent with the law in WA and the recent case of Minister of Education v Shire of Northam [2016] WADC 42 where an occupier was found negligent when a chair collapsed underneath a patron.

Lewis v Kmart Australia Ltd [2016] NSWDC 218


Battery and intentional infliction of harm

Cultural norms considered in evaluation of tortious conduct

In determining a claim for battery and intentional infliction of harm arising from alleged unlawful sexual penetration and subsequent bullying, harassment, threats and intimidation, the District Court of WA has considered cultural norms before awarding $30,000 in damages to the plaintiff.

The plaintiff (RS), had a long history of mental health issues and marital unrest. Prior to the alleged events she socialised mostly within the Indian community and had few outside friends.

RS alleged that the defendant (HS), a colleague, unlawfully sexually penetrated her from January 2009, whereas HS claimed that it was a consensual extramarital affair. RS first reported it as an assault to her employer in May 2011; two years later she reported it as a sexual assault to police. Her reasoning for the delay was that she knew she would be blamed by the Indian community and was scared of the consequences.

The social consequences for an Indian woman who had been raped or had an extramarital affair were the subject of expert evidence. A University of Sydney Associate Professor in Asian Studies gave evidence that rape is considered a matter of great shame within the Indian Hindu community, that there is a history of distrust of police amongst Indian women, and that RS’s husband came from an area where these attitudes of hidden conservatism were prevalent.

Justice Levy accepted that the Indian community considered consensual extramarital sex worse than being raped and that to say she had been raped was the lesser of two evils. His Honour was not persuaded that unlawful sexual penetration occurred but instead that they were in a consensual sexual relationship which RS was anxious to conceal from her husband. On this basis her claims relying on any act of unlawful sexual penetration were dismissed.

His Honour then went on to consider her claim for damages arising from the intentional infliction of harm based on HS’s bullying, harassment, threats and intimidation separate from the allegations of unlawful sexual penetration. RS’s claim was that his conduct caused her to suffer mental anguish and anxiety, resulting in her withdrawing from the Indian community and attempting suicide in 2011.

Justice Levy did not accept that RS lending money to HS and obtaining a large loan for his benefit was done under duress or fear of threats made against her, but rather because she was infatuated with him and trying to please him. His Honour did however find that HS’s conduct of threatening to tell others about their sexual relationship, saying she would not be able to ‘show her face’ (significant in Indian culture) and ridiculing her amounted to bullying, harassment and intimidation.

His Honour was satisfied that HS was recklessly indifferent to the result that would flow from his conduct and that the probable consequence was that RS would suffer a psychiatric injury. While Justice Levy was not satisfied that his conduct was the only factor causing her major depressive disorder, he was satisfied that it had materially contributed to her injury, suicide attempt and need for hospitalisation.

Justice Levy awarded $25,000 in general damages and $5,000 for future care and treatment.

RS v HS [2016] WADC 157


Fast facts

Changes to the WorkCover WA Guidelines for the evaluation of permanent impairment

WorkCover has issued the fourth edition of the guidelines for permanent impairment evaluations, which applies to assessments conducted from 1 December 2016. Some key changes are:

  • Where an injury is not covered by any of the guidelines, assessors can still use an equivalent/analogous conditions based on their clinical judgment, but the equivalent/analogous condition must stay within the body part/region1.
  • Upper extremities:
    • a new guideline for assessing range of motion has been added, and if there is inconsistency in the range of motion, then it cannot be used as a valid perimeter for impairment evaluation. If that occurs the assessor should use discretion in considering what weight to give other available evidence to determine if an impairment is present. Although examples are not given, such evidence may include past range of motion assessments by physiotherapists or exercise physiologists2.
    • Impairment percentages for resection arthoplasties of acromioclavicular joints have decreased, but sternoclavicular joint has increased3.
    • Epicondylitis of the elbow is now a condition that must be present for at least 18 months and the condition has now rated as 2% upper extremity impairment or 1% whole of person impairment (WPI)4.
    • The assessment of carpel tunnel syndrome post-operatively is undertaken in the same way as assessment without operation5.
  • Lower extremities:
    • Osteoarthritis is now defined as cartilage loss, and that impairment can only be assessed by radiologically determined cartilage loss intervals in the AMA5 table 17-316.
    • A new table 3.3 has been included to assess impairment ratings for total hip and knee replacements based on good results, fair results and poor results, which are assessed based on a points scoring system for pain, range of motion and varus and valgus deformities7.
  • The spine:
    • Where there are adjacent vertebral fractures at transitional zones, the assessor is to use the WPI ratings for the cervical spine for fractures at C7/T1, and the WPI rating for the thoracic spine for fractures at T12/L18.
    • Insertion of spinal cord stimulators or similar devices do not warrant any additional WPI9.
    • The maximum WPI for pelvic fractures is increased from 12% to 20%10.
  • The nervous system:
    • For traumatic brain injuries there should be evidence of a severe impact to the head or that the injury involved a high energy impact. In addition, neuropsychological test data should be considered in the context of the overall clinical history, examination and radiological findings, and not in isolation11.
  • The skin:
    • uncomplicated scars for standard surgical procedures are not, of themselves, rate as an impairment12.
  • The digestive system:
    • With respect to post-surgical damage to the ilio-inguinal nerve, and ongoing discomfort following a repair of a hernia, permanent impairment assessments should not be made unless the symptoms have persisted for 12 months13.
    • With respect to the effects of analgesics on the digestive tract, the guidelines specifically notes that taking such medication for prolonged periods of time can cause symptoms in the upper digestive tract, but in the absence of clinical signs or other objective evidence of upper digestive tract disease, anatomic loss or alteration, the assessment should be 0% WPI14.
  • Chronic pain:
    • This whole chapter has been revised. It continues to excludes AMA5, chapter 18.
    • Complex regional pain syndrome (CRPS) must be diagnosed as per table 17.1. The diagnosis must have been present for at least one year, verified by more than one examining physician, and other possible diagnoses have been excluded, such as conditions that may mimic CRPS. Table 17.1 provides the following diagnostic criteria for CRPS:
      • Continuing pain, which is disproportionate to any causal event.
      • Must report at least one symptom in four categories, being sensory, vasomotor, sudomotor/oedema and motor/trophic.
      • Must display at least one sign at the time of the evaluation in all of the four categories listed above.
      • There is no other diagnosis that better explains the signs and symptoms.
    • If the worker satisfies the diagnostic criteria, then it is possible to combine the extremity impairment for loss of joint motion with an impairment for pain or sensory deficit using the combined values chart to obtain a final extremity impairment.

Injured workers entitled to PBS medications

Injured workers with a Medicare card will now be able to receive discounted medications under the Pharmaceutical Benefits Scheme (PBS).

Where clinically appropriate, all medications should be prescribed and charged under the PBS rate upon presentation of the injured worker’s Medicare card. Employers and insurers may pay for non-PBS (privately prescribed) medications if in the medical practitioner’s opinion the medications are clinically appropriate for their condition and there is no readily available alternative on the PBS.

As injured workers’ entitlements to medical expenses are capped by a prescribed amount, access to subsidised PBS medications will ensure their entitlements go further.


Changes to regulations for medical and allied health fees

Amendments to the Workers’ Compensation and Injury Management (Scales of Fees) Regulations 1998 (WA) (Regulations) came into effect on 1 November 2016.

The amendments apply a 1.87% increase to all medical and allied health provider fees, based on the application of WorkCover’s composite index.

Medical fees:

  • Anaesthetists $84.25 per unit.
  • Approved Medical Specialists – varies (see Schedule 1, Part 1 Regulations).
  • Consultant Psychiatrists – varies (see Schedule 1, Part 1 Regulations).
  • Dermatologists – varies (see Schedule 1, Part 1 Regulations).
  • Diagnostic Imaging – varies (see Schedule 1, Part 3 Regulations).
  • General Practitioner – varies (see Schedule 1, Part 1 Regulations).
  • Medical Procedures – varies (see Schedule 1, Part 1 Regulations).
  • Approved Medical Specialist Assessments – varies (see Schedule 6, Part 1 Regulations).
  • Physicians and Surgeons – varies (see Schedule 1, Part 1 Regulations).

Allied health provider fees:

  • Acupuncture $82.95 (includes consultation and treatment).
  • Chiropractors – varies (see Schedule 3 Regulations).
  • Clinical Psychologists $241.35 per hour.
  • Exercise-Based Programs (see Schedule 2, Part 2 Regulations).
  • Exercise Physiologists (see Schedule 5A Regulations).
  • Occupational Therapists (see Schedule 4 Regulations).
  • Osteopaths $76.35 per consultation.
  • Physiotherapists (see Schedule 2, Part 1 Regulations).
  • Speech Pathologists (see Schedule 5 Regulations).
  • Vocational Rehabilitation $180.10 per hour.

This article was written with the assistance of Sarah Marshman, Law graduate.


1see clause 1.29.
2see clause 2.5.
3see clause 2.14.
4see clause 2.18.
5see clause 2.9.
6see clause 3.20.
7see clause 3.28.
8see clause 4.32.
9see clause 4.41.
10see clause 4.42.
11see slause 5.9.
12see clause 14.6.
13see clauses 16.2-16.4.
14see clause 16.9.


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