Gary Martin v Kevin Teeling

Supreme Court of NSW|2010-06-24

Background 10 The background facts are common ground. It is the applicability of the Workers Compensation legislation that is in dispute. On 20 January 2009, Gary Martin commenced proceedings in the Workers Compensation Commission to recover lump sum compensation pursuant to s 66 and s 67 of the Workers Compensation Act 1987 ("the Act") based on his psychiatric injury arising from the accident. On 7 April 2009, a medical assessment certificate was issued assessing Gary Martin as suffering a total 8% whole person impairment. As such under s 151H of the Act Gary Martin is not entitled to any award of damages under the Act. 11 On 13 August 2009, Gary Martin commenced proceedings in this Court for damages for nervous shock as a result of the accident on 28 October 2006. On 14 October 2009, Teelings filed a defence pleading a failure to comply with Part 5, Division 3 of the Act and Chapter 7, Part 6 of the Workplace Injury Management and Workers Compensation Act 1998. 12 Teelings submitted that at the time of the accident Gary Martin also had a contract of employment with Teelings as defined by s 4 of the Workplace Injury Management and Workers Compensation Act. Gary Martin has claimed and received weekly payments of compensation because of his psychiatric injury resulting from the accident. 13 While the statement of claim refers to the negligence of Teelings, it does not plead that Gary Martin's claim is at common law under s 4(1) of the Law (Reform Miscellaneous) Act 1946. Nor does it mention the Act and the Workplace Injury Management and Workers Compensation Act. For the purposes of this application, I shall assume that tragically Gary Martin witnessed the death of his son or its aftermath.

The Workers Compensation Act and the Workplace Injury Management and Workers Compensation Act 14 Sections 4 of the Act and the Workplace Injury Management Act defined "injury" to mean, "a personal injury arising out of or in the course of employment". Also s 4 of the Workplace Injury Management Act defines "worker" as: a person who has entered into or works under a contract of service or a training contract with an employer (whether by way of manual labour, clerical work or otherwise, and whether the contract is expressed or implied, and whether the contract is oral or in writing). 15 Exclusions to "worker" are defined but none are of relevance here. The Workplace Injury Management and Workers Compensation Act defines the meaning of "related". Under s 4(5)(a)(ii) persons are related if one is the child of the other. 16 Section 2A of the Act relevantly provides that it must be construed with, and as if it forms part of, of the Workplace Injury Management and Workers Compensation Act and in the event of inconsistency the Workplace Injury Management and Workers Compensation Act prevails to the extent of the inconsistency. 17 Part 5, Division 2 of the Act is headed "Common law and other remedies generally". Part 5 consists of s 149 to s 151AC. I shall refer to some of the relevant provisions of Division 2. 18 Section 151 of the Act reads: 151 Common Law and other liability preserved

This Act does not affect any liability in respect of an injury to a worker that exists independently of this Act, except to the extent that this Act otherwise expressly provides. 19 Gary Martin says that he sues the defendant not as a worker but as the father of Corey pursuant to s 151P of the Act. Teelings submitted that Gary Martin is not entitled to bring these proceedings as he was also a worker employed by Teelings at the time of the accident.

20 Section 151P of the Act reads: 151P Damages for psychological or psychiatric injury

No damages for psychological or psychiatric injury are to be awarded in respect of an injury except in favour of:

(b) a parent, spouse, brother, sister or child of the injured or deceased person who, as a consequence of the injury to the injured person or the death of the deceased person, has suffered a demonstrable psychological or psychiatric illness and not merely a normal emotional or cultural grief reaction. 21 Teelings submitted that Gary Martin is a worker who is claiming damages in respect of an psychiatric injury that he suffered in the course of his employment and probably also arising out of his employment. Teelings submitted that even though Gary Martin is also a parent of Corey it does not enable him to deny the fact that he is a worker who suffered injury in the course of his employment and he therefore is caught by the provisions of both Acts. According to Teelings the operation of s 151E of the Act means that Part 5, Division 3 of the Act and Chapter 7, Part 6 of the Workplace Injury Management and Workers Compensation Act apply. 22 Section 151E of the Act reads: 151E Application - modified common law damages

(1) This Division applies to an award of damages in respect of: (a) an injury to a worker, or

(b) the death of a worker resulting from or caused by an injury,

being an injury caused by the negligence or other tort of the worker's employer.

(2) This Division does not apply to an award of damages to which Part 6 of the Motor Accidents Act 1988 or Chapter 5 of the Motor Accidents Compensation Act 1999 applies.

(3) This Division applies to an award of damages in respect of an injury caused by the negligence or other tort of the worker's employer even though the damages are recovered in an action for breach of contract or in any other action.

(4) Subsection (3) is enacted for the avoidance of doubt and has effect in respect of actions brought before as well as after the commencement of that subsection." 23 Section 151F of the Act provides for the general regulation of court awards. It states, "A court may not award damages to a person contrary to this Division." 24 Section 151H of the Act reads: 151H No damages unless permanent impairment of at least 15%

(1) No damages may be awarded unless the injury results in the death of the worker or in a degree of permanent impairment of the injured worker that is at least 15%.

Note. Section 322 of the 1998 Act provides that the assessment of the degree of permanent impairment is to be made in accordance with WorkCover Guidelines. That section also provides that impairments that result from the same injury are to be assessed together.

(2) In assessing whether the 15% threshold has been met (that is, whether the degree of permanent impairment resulting from an injury is at least 15%): (a) impairment resulting from physical injury is to be assessed separately from impairment resulting from psychological injury, and

(b) in assessing impairment resulting from psychological injury, no regard is to be had to impairment that results from a secondary psychological injury, and

(c) the 15% threshold is not met unless the degree of permanent impairment resulting from physical injury is at least 15% or the degree of permanent impairment resulting from psychological injury is at least 15%.

Note. This does not prevent an award of damages in respect of both psychological and physical injuries together once the 15% threshold has been met for one or the other. (3) In assessing the degree of permanent impairment that results from a physical injury, no regard is to be had to any impairment or symptoms resulting from a psychological injury.

(4) The degree of permanent impairment that results from an injury is to be assessed as provided by this section and Part 7 (Medical assessment) of Chapter 7 of the 1998 Act.

(5) In this section: psychological injury includes psychiatric injury. secondary psychological injury means a psychological injury to the extent that it arises as a consequence of, or secondary to, a physical injury. 25 Teelings further submitted that Chapter 7, Part 6, s 313, s 314 and s 315 of the Workplace Injury Management and Workers Compensation Act effectively prevent the issue of court proceedings pursuant to s 313 unless and until the plaintiff has (a) established that he suffers a 15% whole person impairment as a result of the injury (s 314) and (b) has filed a pre-filing statement. If the provisions of the Act apply, by virtue of the operation of s 151F and s 151H of the Act, and the assessment of Gary Martin's whole person impairment is 8%, it means that he is not entitled to any award of damages from his employer. On this basis Teelings is seeking to have this statement of claim struck out or dismissed. 26 Teelings referred to Kimberley-Clark Australia Pty Ltd v Thompson [2006] NSWCA 264; (2006) 67 NSWLR 187. In Kimberley-Clark Rosalina Thompson was the widow of the late Mark Thompson who died of injuries received in the course of his employment with Kimberley-Clark. Mrs Thompson brought proceedings for nervous shock resulting from the death of her husband. The Court of Appeal held that the statutory concept of "work injury damages" in s 250 of the Act did not extend to a claim for nervous shock brought by a stranger to the employment relationship, against the employer, merely because the cause of the nervous shock was an injury (causing death) to an employee. Accordingly, the procedural requirements of s 250 of the Act were not within the definition of "work injury damages". 27 In Kimberley-Clark, the Court of Appeal, per Basten JA, referred to Workers Compensation Board of Queensland v Technical Products Pty Limited [1988] HCA 49; (1988) 165 CLR 642. Basten JA at [52], [56] and [63] stated: 52 The difficulty with the conclusion that a claim for nervous shock by a third party is "in respect of" an injury to a worker is that it may not depend upon any actual injury to any worker. …

56 In my view, the primary judge was correct to adopt the reasoning in Workers Compensation Board , in considering the proper construction of the definition of "work injury damages" in s 250 of the Workplace Injury Act . I also agree with the conclusion reached by his Honour, namely that the statutory concept does not extend to a claim for nervous shock brought by a stranger to the employment relationship, against the employer, merely because the cause of the nervous shock was an injury (causing death) to an employee. Nor is the nature of the connection between the claim and the employment relationship changed by the fact that the claimant was married to the deceased worker. Accordingly, the requirements of Chapter 7 which depend upon there being a claim for "work injury damages" are not engaged in the present case.

63 Counsel were able to offer no explanation for this apparent anomaly. Nor does the history of the provision provide assistance. It was introduced by the Workers Compensation (Benefits) Amendment Act 1989, which introduced Pt 5 in its original form. The second reading speech gives no indication as to the intended scope and operation of para (b). Significantly, however, the same amending Act introduced s 151 which reads: '151 Common law and other liability preserved

This Act does not affect any liability in respect of an injury to a worker that exists independently of this Act, except to the extent that this Act otherwise expressly provides.' If general law liabilities in respect of injuries to workers are only affected as expressly provided, no broader intention should be inferred in relation to persons who are not workers. Consistently with that approach, and accepting that s 151P expressly applies to those who are not workers, there can be no implied affectation of other rights of non-workers, beyond those expressly identified in s 151 P. Any proposed implication that other provisions of Pt 5 of the Workers Compensation Act , let alone provisions of the Workplace Injury Act , are thereby engaged by implication is untenable. 28 In Kimberley-Clark Bryson JA at [5] stated 5 … To my mind the question: 'Why would the legislature choose Ch 7 in which to set about regulating claims of persons who were not employed by the employer and were not injured in the course of employment, but suffered nervous shock caused by a worker's death?' can only receive the answer: 'No reason can be seen', so that that cannot be what was intended. 29 In Workers Compensation Board of Queensland v Technical Products Pty Limited the High Court stated at 655 - 656: The phrase "damages in respect of that injury" in section 8(1)(b) is clearly a reference to "damages in respect of injury to a worker." The natural meaning of the expression is, therefore, damages payable to a worker and assessed by reference to his injury. So construed, the expression would exclude damages for nervous shock to a person other than a worker, not only because such damages are payable to a person other than the worker, but also because the damages are measured by the extent of the nervous shock and its consequences and not by the extent of the injury causing the nervous shock and its consequences …

… Moreover, to read the expression as referring to damages for nervous shock to a third party occasioned by injury to a worker gives rise to an anomaly. Nervous shock may be caused not only by injury to another but also by placing another in peril. Damages awarded in that latter situation would, where the person placed in peril was a worker, be for breach of the same duty of care, but would clearly not be covered by s 8(1)(b). 30 Teelings then submitted that Gary Martin's claim is fatally different to the facts of Kimberley-Clark because Gary Martin was a worker at the time of the accident and suffered his injury in the course of his employment with Teelings and is therefore subject to the requirements of the Act. 31 However, the principle that a plaintiff may have two or more independent causes of action against an employer of the plaintiff is uncontroversial. In Stryke Corporation Pty Limited v Miskovic (2007) NSWCA 72 the Court of Appeal held that the plaintiff's claim pursuant to s 53B of the Trade Practices Act was not an action for tort within the meaning of the definition of work injury damages in s 250(l) of the Workplace Injury Management and Workers Compensation Act and the Act. The Trade Practices claim was therefore not subject to the procedural provisions of the Workplace Injury Management and Workers Compensation Act. 32 Gary Martin says that the duty of care owed to a family member is independent of any duties relevant to the employment situation and that the workers compensation legislation speaks ultimately of restrictions of a person's rights or entitlements (such as the payment of workers compensation) as a "worker". According to counsel for Gary Martin to extrapolate from that legislation restrictions or covenants on common law rights where other duty relationships exist is not warranted either by an examination of the language and purpose of the legislation or the authorities that have variously interpreted it, particularly in relation to nervous shock. 33 In my view Gary Martin may have two independent claims against his employer, including, for nervous shock under the common law, as extended under s 4(1) Law Reform (Miscellaneous Provisions)) Act. That cause of action has not been expressly taken away by the introduction of Part 5 of the Act. The cause of action comes about because of the familial relationship. Familial relationships are not governed by the Act. Neither the Act nor the Workplace Injury Management and Workers Compensation Act expressly takes away the rights that exist under the Law Reform (Miscellaneous Provisions) Act. 34 It is necessary to refer to Gifford v Strang Patrick Stevedoring Pty Limited [2003] HCA 33; (2003) 214 CLR 269. In Gifford v Strang the High Court considered whether Mr Gifford's employer owed a duty of care to Mr Gifford's children. One argument raised was whether s 4 of the Law Reform (Miscellaneous Provisions) Act displaced an independent common law right to bring an action for nervous shock.

35 The High Court stated at [37] to [42]: 37 The right to bring an action for psychiatric injury is an ordinary legal right. It is not a fundamental right of our society or legal system similar to the right to have a fair trial or to have a criminal charge proved beyond a reasonable doubt. Nor is the presumption against interfering with ordinary common law rights of the same strength as the presumption that laws do not operate retrospectively. Whether or not the Law Reform (Miscellaneous Provisions) Act excludes the common law has to be determined by construing the legislation in its natural and ordinary meaning, having regard to its context and the purpose of the enactment. The context and purpose of a law includes the history of the enactment and the state of the law when it was enacted . 38 Section 4(1) says that liability in respect of a negligently inflicted injury shall "extend to include" liability for nervous shock. The words "extend to include" indicate that the New South Wales legislature sought to alter the common law in that State, as understood at the time, for the benefit of certain family members. The words of s 4(1), and in particular the words "extend to include", indicate that the section expanded the scope of the common law so far as family members were concerned, but otherwise maintained the existence of a common law action for nervous shock for those persons. 39 There is not a word in the Law Reform (Miscellaneous Provisions) Act that suggests that its purpose was to abolish generally the common law right to bring an action for damages for nervous shock. Nothing in the legislation itself or the Second Reading Speech indicates that the legislature intended that only those family members included in the definition in s 4(5) of the Law Reform (Miscellaneous Provisions) Act could bring an action for nervous shock. The fact that the legislature did not seek to exclude the common law is evident from a statement in the Second Reading Speech where the Minister said that s 4 would not affect the liability of newspaper publications who would continue to be governed by the common law. Against that background, it would be surprising if s 4 had the purpose - sub silentio - of abolishing the common law rights of the family members of an injured or deceased person and confining their rights to those conferred by the section. This is particularly so, given that the evident purpose of the legislation was to give family members rights of action denied to other persons who suffer nervous shock as the result of the careless conduct of wrongdoers. 40 Because the present issue has not previously arisen for determination, judicial utterances concerning the issue have been limited. But on two occasions, members of this Court have expressed the view that s 4 was an extension and not an abolition of the common law right to bring an action for nervous shock. In Scala v Mammolitti , Taylor J said that, although s 4 extended the field in which persons standing in a special relationship to a person killed, injured or put in peril might recover for nervous shock, "it otherwise leaves the earlier law untouched." In Mount Isa Mines Ltd v Pusey , Windeyer J said that New South Wales had modified the common law by enacting the Law Reform (Miscellaneous Provisions) Act and that the common law concerning nervous shock continued to develop. 41 Statements in the New South Wales Supreme Court are also consistent with the view that s 4 does not exclude the operation of the common law in New South Wales. In Anderson v Liddy , Jordan CJ referred to s4 as extending "in certain respects the common law liability of wrongdoers" in relation to nervous shock. His Honour referred to actions by family members brought under s 4 as "special cases". In Coates v Government Insurance Office of New South Wales , Kirby P held that s 4(1) does not exhaustively define the rights of persons to recover for nervous shock. His Honour said that, on its proper construction, the section provided a right for certain persons to bring proceedings for nervous shock in addition to common law rights that remained unaffected. Clark JA tentatively agreed with Kirby P on this issue. Similarly in FAI General Insurance Co Ltd v Lucre , Mason P, with whose judgment Meagher and Giles JJA agreed, said that the "section does not purport to restrict the continuing development of the common law of Australia".

42 Accordingly, it was not the purpose of s 4 of the Law Reform (Miscellaneous Provisions) Act to abolish the rights of the persons identified in that section to bring common law actions for nervous shock suffered as the result of harm to, or the putting in peril of, a relative. Nor is the position changed because in 1944 lawyers and the legislature of New South Wales understood the common law to be more restricted than this Court has now declared it to be. 36 Section 4(1) of the Law Reform (Miscellaneous Provisions) Act does not abolish the common law right to bring an action for nervous shock. It extends it. 37 It is my view that it is arguable that the common law action for nervous shock by a father in relation to his son's death has not expressly been taken away by the introduction of Part 5 of the Act. To read that legislation as taking away the common law claim for nervous shock recognises only a relationship between employer and worker. It ignores the existence of a more fundamental relationship, namely, that between a father and son. The pleading in the statement of claim should be permitted to go trial. The notice of motion filed 19 March 2010 is dismissed. The matter is listed for a status conference on 10 August 2010 at 9.00 am before the Registrar. 38 Costs are discretionary. Costs usually follow the event. The defendant is to pay the plaintiff's costs as agreed or assessed. The Court orders:

(1) The notice of motion filed 19 March 2010 is dismissed.

(2) The matter is listed for a status conference on 10 August 2010 at 9.00 am before the Registrar.

(3) The defendant is to pay the plaintiff's costs as agreed or assessed. **********

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

CITATION : Gary Martin v Kevin Teeling [2010] NSWSC 814

Air Services Australia v Zarb (Court of Appeal, 26 August 1998, unreported) Commonwealth of Australia v Griffiths & Anor [2007] NSWCA 370; [2007] 70 NSWLR 268 Dey v Victorian Railway Commissioners [1949] HCA 1; (1949) 78 CLR 62 General Steel Industries Inc v Commissioner for Railways (NSW) & Ors [1964] HCA 69; (1964) 112 CLR 125 CASES CITED : Gifford v Strang Patrick Stevedoring Pty Limited [2003] HCA 33; (2003) 214 CLR 269 Kimberley-Clark Australia Pty Ltd v Thompson [2006] NSWCA 264; (2006) 67 NSWLR 187 Stryke Corporation Pty Limited v Miskovic (2007) NSWCA 72 Webster & Anor v Lampard [1993] HCA 57; (1993) 177 CLR 598 Workers Compensation Board of Queensland v Technical Products Pty Limited [1988] HCA 49; (1988) 165 CLR 642

12 The summary disposal of proceedings or part thereof deprives a party of the right to a contested hearing. For that reason it is said that the requirement for establishing that there is no triable issue is demanding: Air Services Australia v Zarb (Court of Appeal, 26 August 1998, unreported). In Webster & Anor v Lampard [1993] HCA 57; (1993) 177 CLR 598, Mason CJ, Deane and Dawson JJ said at 602: '… the issue before the learned Master on the application for summary judgment was not whether [the plaintiffs] would probably succeed in their action against [the defendant]. It was whether the material before the Master demonstrated that that action should not be permitted to go to trial in the ordinary way because it was apparent that it must fail. The power to order summary judgment must be exercised with 'exceptional caution' and 'should never be exercised unless it is clear that there is no real question to be tried.' (Citations omitted)' 9 Hence, for the Teelings to succeed in having the statement of claim it has to show that it is clear that it raises is no real question to be tried.

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