"If the injury for which compensation is payable under this Act was caused under circumstances creating a liability in some person other than the worker's employer to pay damages in respect of the injury.' …"
32 In that case the plaintiff had injured her back at work while at another's premises. The accident had been caused by the occupier's negligence. The plaintiff later aggravated her back injury in separate work incidents. She received compensation from her first employer, damages from the occupier at whose premises the first injury occurred, and also compensation from her second employer for the later aggravation. The Court of Appeal held that s 151Z applied to the first injury because it occurred at work and created a liability in the occupier to pay damages but did not apply to the second injury because no liability for damages was created at that time - it only increased the damages payable by the occupier for the first injury.
33 The defendant argued that Franklins Self-Serve is different to the present case because here there are two sets of circumstances. First, there are the circumstances that gave rise to the liability to pay workers compensation, namely, the plaintiff's heavy work prior to 12 June 2003 and thereafter his heavy work in the period from 13 June 2003 to 22 July 2003. These circumstances did not and could not create a liability in the defendant to pay common law damages. The liability on the part of the defendant arose because he failed properly to treat the plaintiff. The defendant's liability could not arise unless and until the plaintiff first consulted him, and continued to consult him thereafter. These are said to be the second set of circumstances. The defendant therefore contended that while the injury might be the same there was not the same occasion and cause in the sense discussed in Russell v J J Woods & Sons Carriers Pty Ltd [2002] NSWCC 38 at par [15] and Kornjaca v Steel Mains Pty Ltd [1974] 1 NSWLR 343 at 347 (see below).
34 According to the defendant's submission, s 151Z does not apply in the present case because the circumstances that created the liability of the defendant were the plaintiff's attendances upon him and his failure properly to treat the plaintiff, which were different to the circumstances that created the liability in the employer for the compensable injury being the plaintiff's undertaking heavy work during the course of his employment. In the language of s 151Z, the injury for which compensation is payable was not caused under circumstances creating a liability in the defendant to pay damages in respect of the injury.
35 In contrast, the plaintiff argued that here the defendant's negligence was in the form of an omission that was and remained of no consequence until damage flowed from it. The defendant's liability was created when the cause of action accrued, which was when damage was first suffered. That damage occurred in the course of the plaintiff's employment so that the defendant's liability was not created until injury occurred at work. Up until that time there had been only a contingent or potential liability. When the injury occurred at work, it then also created a liability in the defendant to pay damages. This is said to be similar to the circumstances of the first injury in Franklins Self Serve.
36 The statement of claim particularised the plaintiff's injuries as an acute myocardial infarction and left ventricular failure and cardiac arrest during coronary angiography and angioplasty on 22 July 2003. It also particularises heart transplantation, decreased life expectancy, deep venous thromboses of the left peroneal and posterior tibial veins and bilateral pleural effusions and pulmonary oedema. Psychological and psychiatric sequelae are also listed. The plaintiff also alleges that his injuries include what are described as "unstable angina of the nature and extent it had reached by 22 July 2003" and "ischaemic cardiomyopathy".
37 However the plaintiff's continuing bouts of chest pain and associated symptoms of discomfort between 12 June 2003 and 21 July 2003 were not injuries for which the defendant was, or would have become, liable to the plaintiff in damages. That liability accrued with the myocardial infarction on 22 July 2003. The plaintiff's presenting complaints and symptoms of unstable angina and ischaemic cardiomyopathy were not caused by the defendant's breach of duty but were indicative of the existence of the underlying premorbid condition that the defendant was required to investigate and treat. These conditions would have existed, and would arguably have been worse, even if the plaintiff had not consulted the defendant about them. In contrast, the events of 22 July 2003 are in a completely different category.
38 The words "circumstances creating a liability" in s 151Z(1) refer in this case to the creation of a liability in the defendant "to pay damages". The defendant's negligent failure to treat the plaintiff in a timely way did not create any liability in him to pay damages, or any liability at all, until some loss or damage had been caused by that negligent failure. When that liability arose on 22 July 2003 it did so as the result of an injury for which compensation was payable to the plaintiff under the Act. The plaintiff's injury on that day was the event that consummated the defendant's liability in the sense that it perfected the tort for which the defendant became liable to the plaintiff. It was the circumstance that created the defendant's liability. In my view it is artificial to approach the defendant's negligent failures to treat the plaintiff as separate but relevant "circumstances". This is because the plaintiff's "injury" was not "caused under" such circumstances. The critical word is "creating". The section does not speak of circumstances leading up to the creation of a liability, or of circumstances related to the creation of a liability, or any similar, less emphatic language. What the section contemplates is the creation of a liability to pay damages and no such liability is created until loss or damage is suffered. The circumstances under which the defendant's "liability" was "created" were the circumstances that "created" the plaintiff's injury, not the anterior circumstances that constituted the defendant's breach of duty. That injury was also the injury for which compensation was payable to the plaintiff under the Act.
39 It is also of no relevance in my opinion that the plaintiff may have received workers compensation payments for the period prior to 22 July 2003. The evidence does not reveal that he did so although it faintly suggests that he continued to work without loss of wages. Similarly, presumably no part of the plaintiff's s 67 entitlement would have been referable to anything that afflicted him before 22 July 2003 because any pain or suffering that he may have been experiencing during that time was not the result of an impairment. In any event, even if what happened to the plaintiff before 22 July 2003 amounted to an injury for which compensation was payable under the Act, it was not the injury caused under circumstances creating any liability in the defendant to pay damages. The defendant's liability arose in my opinion only after and in respect of the events on and following 22 July 2003. That was relevantly an "injury for which compensation is payable under the Act", even if it was not necessarily the only injury having that consequence.
40 I note that the plaintiff did not limit himself to an argument based upon a view such as I have expressed. Indeed, the plaintiff argued that the first compensable injury under the Act and the first incident of tortious damage consummating or perfecting the cause of action against, and creating a liability in, the defendant coincided with all of the matters leading to the plaintiff's complaints to the defendant that occurred after the initial consultation on 12 June 2003. They were not limited to the events of 22 July 2003. It will be apparent that I have come to a different view. The plaintiff argued that in either event the same result follows.