George v Survery

Dudley v Condell Park Carrying Co Pty Limited (1988) 4 NSWCCR 58 CASES CITED : Franklins Self Serve Pty Ltd v Wyber [1999] NSWCA 390; (1999) 48 NSWLR 249 Kornjaca v Steel Mains Pty Ltd [1974] 1 NSWLR 343 Russell v J J Woods & Sons Carriers Pty Ltd [2002] NSWCC 38

PARTIES : Kevin George (Plaintiff) Dr Hafizur Survery (Defendant)

COUNSEL : D E Graham (Plaintiff) M I Bozic SC (Defendant)

SOLICITORS : Slater & Gordon Limited (Plaintiff) Paul Tsaousidis (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION PROFESSIONAL NEGLIGENCE LIST

JUDGMENT 1 HIS HONOUR: By notice of motion filed on 14 October 2008 the defendant sought an order pursuant to UCPR rule 28(2) that the Court separately determine the question of whether s 151Z of the Workers Compensation Act 1987 ("the Act") applies in the circumstances of the plaintiff's claim against him. That separate question came before me for determination on 18 December 2008. Background 2 The facts are not in dispute. The plaintiff was born on 11 February 1946 and is now an unemployed truck driver. On 12 June 2003 the plaintiff consulted the defendant who is and was then a registered medical practitioner in general practice. The plaintiff had experienced a sudden onset of chest pain earlier that day while pulling a pallet onto the tailgate of his truck in the course of his employment with K & E George Pty Ltd ("the employer"). The chest pain was central with no radiation. It was associated with nausea, giddiness, sweating and shortness of breath. The pain was relieved by rest and lasted for approximately 30 minutes. 3 On 13 June 2003 the plaintiff underwent an ECG, which was reported as being within normal limits. He underwent a cardiac enzymes test the same day which was also reported as normal. The plaintiff consulted the defendant again on 14 June 2003. The defendant ordered a full blood count, cardiac enzymes, thyroid function test, serum lipids and serum uric acid level. These tests were all carried out that day and were all reported as normal. His blood pressure was measured at 140/90 and he was advised to take Mylanta for his chest pain. The plaintiff was asked to return for review in two days. 4 The plaintiff further consulted the defendant on 17 June 2003. During that consultation the defendant elicited a history that the plaintiff also developed shortness of breath on exertion. He examined the plaintiff whose pulse rate was 80 bpm and his blood pressure was now 160/80. The defendant did not give the plaintiff any further advice in relation to his chest pain. 5 On 23 June 2003 the plaintiff again consulted the defendant for advice and treatment for chest pain. The plaintiff continued to complain of chest pain on exertion that was similar to the pain experienced on 12 June 2003. The pain occurred every day and occasionally with rest. His pulse rate was recorded as 76 bpm and his blood pressure as 150/90. The defendant prescribed Coversyl 2mg and Zoton. 6 The plaintiff consulted the defendant the following day complaining of continuing chest pain in circumstances similar to his previous complaints. He also complained of coughing up blood. His blood pressure was recorded as 150/90 and his pulse rate as 88 bpm. The defendant ordered a chest x-ray. 7 The plaintiff underwent a chest x-ray on 25 June 2003 that was noted as normal by the defendant on that day. The defendant did not give the plaintiff any further advice in relation to his chest pain. 8 On 10 July 2003 the plaintiff again consulted the defendant for advice and treatment in relation to his chest pain. He continued to experience chest pain that was similar to that which he experienced on 12 June 2003. It occurred daily and occasionally at rest. The plaintiff reaffirmed experiencing shortness of breath on exertion. His blood pressure was 150/80. The defendant prescribed Zoton, Somac, Lipitor and Nexium. 9 The plaintiff consulted the defendant for the last time on 14 July 2003 with all of the same complaints. In addition the plaintiff now complained of burning chest pain and that he achieved no relief with Nexium. The plaintiff was referred to Dr Mardini whom he consulted for advice and treatment of his chest pain the following day. 10 The plaintiff had continued to work as a truck driver for the employer for the period between 12 June 2003 and 21 July 2003. He was not told by the defendant to cease working until the cause of his chest pain had been established. On 22 July 2003 the plaintiff suffered a myocardial infarction in the course of carrying out his normal duties for the employer. He presented to Mt Druitt Hospital that day where he was diagnosed as also suffering from left ventricular failure. The plaintiff ultimately underwent a heart transplant on 8 April 2005. 11 The defendant admits that he owed a continuing duty to the plaintiff to exercise reasonable care and skill in the provision of advice and treatment in respect of his chest pain. He admits that he breached that duty of care in several respects during the period between 12 June 2003 and 14 July 2003. It is unnecessary for present purposes fully to particularise these breaches. In short the defendant admits that his negligence caused an acute myocardial infarction and ventricular failure on 22 July 2003, cardiac arrest during coronary angiography and angioplasty the same day and the subsequent heart transplant on 8 April 2005. 12 On 27 November 2003 the plaintiff made a claim for workers compensation against the employer. He completed a claim form in which the following particulars are provided as "Injury Details": " How did the injury occur, and what were you doing when the injury happened? Chest pain started while unloading groceries from truck on 12.6.03. Heart attack 22.7.03. What part/s of your body is/are injured? Heart - 19% function only remaining ." 13 On 8 January 2004, GIO Workers Compensation (NSW) Ltd accepted liability for the plaintiff's workers compensation claim. Weekly compensation payments and medical expenses have been paid to the plaintiff together with lump sums pursuant to sections 66 and 67 of the Act. The plaintiff continues to receive weekly payments of compensation. 14 The present proceedings were commenced by statement of claim filed on 9 June 2006. In separate proceedings filed in this Court on 18 December 2008 the employer sought against the present defendant a series of declarations and orders, including for presently relevant purposes, a declaration that the employer is entitled to an indemnity pursuant to s 151Z(1)(d) of the Act from the defendant for the compensation paid by the employer to or on behalf of the plaintiff pursuant to the Act. The employer also sought a declaration that the plaintiff is liable to repay to it the compensation paid to the plaintiff by the employer out of any damages payable by the defendant to the plaintiff in these proceedings. The legislation 15 The terms of s 151Z of the Act are well known. It is only necessary for present purposes to note the following portions of it: "151Z Recovery against both employer and stranger

(1) 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, the following provisions have effect:

(a) the worker may take proceedings both against that person to recover damages and against any person liable to pay compensation under this Act for payment of that compensation, but is not entitled to retain both damages and compensation,

(b) if the worker recovers firstly compensation and secondly those damages, the worker is liable to repay out of those damages the amount of compensation which a person has paid in respect of the worker's injury under this Act, and the worker is not entitled to any further compensation,

(c) if the worker firstly recovers those damages the worker is not entitled to recover compensation under this Act,

(d) if the worker has recovered compensation under this Act, the person by whom the compensation was paid is entitled to be indemnified by the person so liable to pay those damages (being an indemnity limited to the amount of those damages), . . . " 16 Section 4 of the Act defines "injury" as follows: - " 4 Definition of "injury"

(a) means personal injury arising out of or in the course of employment,

(i) a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor, and

(ii) the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration, . . ."

17 It was the plaintiff's contention that the provisions of this section applied to the circumstances of the present case. The defendant contended otherwise. It is therefore necessary to examine those competing positions in some detail. Submissions 18 The plaintiff contended that the issue is whether the circumstances of the present case are covered by the introductory words to the section. Based upon the ordinary meaning of those words, in the light of the decided cases dealing with its construction, two conditions must be satisfied before a case will be caught by s 151Z(1): - (a) The injury for which compensation is payable must be the same injury for which there is a liability in a stranger to pay damages; and (b) The circumstances causing the work injury must also create a liability in a stranger to pay damages for that injury. 19 In other words, assuming there is a liability in a stranger to pay damages, there must be both identity of injury and the circumstances that caused it. Having regard to the definition of injury, it is evident that the injury must have either occurred in circumstances arising out of employment or in circumstances occurring in the course of employment and that the circumstances creating a liability to pay damages must have either arisen out of employment or occurred in the course of employment. The plaintiff received compensation and will be paid damages by the defendant because of what happened after the first episode of chest pain. All of his injuries occurred in the course of or arose out of his employment. They are the same injuries for which the defendant is liable in damages. 20 The plaintiff reasoned as follows. The plaintiff's work injury in the form of the unstable angina pectoris occurred in circumstances in the course of his employment. The myocardial infarction and other injuries occurred in circumstances arising out of the plaintiff's employment, as did the defendant's breach of duty (seeking medical advice for the chest pain). The injury in the form of unstable angina pectoris flowing from the defendant's breach also occurred in circumstances in the course of the plaintiff's employment and the injuries flowing from the defendant's negligence (myocardial infarction and the other injuries) did so as well. Accordingly, there is an identity of the causal circumstances giving rise to the work injuries and the injuries for which damages are payable. They occurred at the same time, either in the course of employment or arising out of employment. 21 The plaintiff contended that the expert evidence supported this analysis. According to cardiologists Dr George Michell and Dr Mark Herman, the plaintiff had underlying coronary artery disease that was aggravated by the work he performed in the course of his employment. The aggravation occurred over a period from 12 June 2003 to 21 July 2003. This ultimately led to the myocardial infarction and consequential injuries. He was injured at work because the defendant did not advise him to stop work and did not takes adequate steps to investigate his chest pain. Thus the aggravation of the underlying coronary artery disease was caused under circumstances (i.e. the plaintiff remaining at work) creating a liability in the defendant to pay damages. This in turn culminated in the plaintiff's heart attack and consequential injuries and disabilities. 22 The plaintiff submitted that the only possible exception to the application of s 151Z(1) was the plaintiff's first episode of chest pain that occurred on 12 June 2003 before he had consulted the defendant. That episode, if it was an aggravation of the underlying coronary artery disease, occurred in the course of employment. No tortious liability attached to anyone at the time of the first episode of chest pain. However, it was part of the factual matrix and circumstances creating a liability in the defendant. The plaintiff consulted the defendant because of the work injury. He did not suffer any injury as the result of negligently inflicted treatment. No injury occurred at the defendant's rooms. The negligence of the defendant caused the plaintiff to go back to work. The plaintiff then suffered daily aggravations to his underlying coronary artery disease in the course of his employment. Apart from the first episode of chest pain on 12 June 2003, every single aggravation of his underlying coronary artery disease was caused at work and because of the negligence of the defendant. Thus, the most the defendant could argue is that the compensation injury was one episode of angina on 12 June 2003. All the other injuries occurred in the course of or arising out of employment because of the defendant's negligence. 23 The plaintiff argued that it was preferable to view the circumstances in which the injuries occurred as a course of conduct over the whole of the period from 12 June 2003 to 21 July 2003. The plaintiff received compensation and will be paid damages by the defendant because of what happened after the first episode of chest pain. All of those injuries occurred in the course of or arose out of employment. They are the same injuries for which the defendant is liable in damages. Alternatively, the first episode of chest pain did not cause any incapacity as evidenced by the fact that the plaintiff continued to work and gave rise to no entitlement to compensation standing alone. It also did not create any liability in the defendant to pay damages. 24 The defendant suggested that the answer to the question of whether or not the section presently applied was to be determined by reference to the answers to four sub-questions. They were as follows: - 1. What was the injury that gave rise to the liability of the employer to pay workers compensation?

2. What was the injury that gave rise to the common law liability of the defendant to pay damages?

3. Was the injury that gave rise to the liability to pay damages the same injury that gave rise to the liability to pay compensation?

4. If so, was the injury for which workers compensation is payable caused under circumstances creating the liability to pay common law damages? 25 The defendant did not contend that the injury that gave rise to the liability of the employer to pay workers compensation was not the same as the injury that gave rise to the common law liability of the defendant to pay damages. The defendant conceded that while the initial angina attack on 12 June 2003 was unrelated to any negligence on the part of the defendant, the angina attacks from 12 June 2003 to 21 July 2003 and the aggravation of the underlying coronary artery disease by heavy physical work accelerating the heart attack on 22 July 2003 were caused and/or contributed to by both the plaintiff's work and the negligence of the defendant. 26 Not unexpectedly the defendant emphasised the importance of the answer to the fourth question and argued that the injury for which workers compensation was payable to the plaintiff was not an injury that was caused under circumstances creating the defendant's liability to pay him common law damages. Adopting the plaintiff's terminology, the defendant argued that even accepting that there was an identity of injury, there was not an identity of the circumstances that caused it. Consideration 27 Counsel for the parties helpfully referred me to all of the apparently relevant cases in this area. It is to be observed that these cases have dealt predominantly with the question of whether there has been only one injury or there have been two separate injuries. That does not presently arise. There is relatively little discussion in the cases of the question of what are the factors required to support a conclusion that an injury for which workers compensation is payable is also an injury that was caused under circumstances creating a liability in damages. 28 One of the cases that contains a discussion of any length on the question of the "circumstances creating a legal liability in some person other than the employer" is Dudley v Condell Park Carrying Co Pty Limited (1988) 4 NSWCCR 58. In that case Mr Dudley was involved in a motor vehicle accident as a result of which he suffered multiple injuries including a fracture of his left tibia and femur. Some twelve months later he was employed by Condell Park Carrying Co Pty Ltd as a truck driver. On his second day at work he broke his leg. He sued Mr and Mrs McKenzie at common law for damages in relation to injuries received in the motor vehicle accident and he also made a claim for workers compensation against his employer. The common law proceedings were settled. In the subsequent compensation proceedings it was held that s 64 of the 1926 Act (the equivalent of s 151Z) applied so as to prevent any claim for compensation. The Court of Appeal held that the trial judge was in error and that the section did not apply. 29 His Honour Clarke JA said at page 63-4: "In my view attention is directed by the prefatory words of section 64 (1) to 'the circumstances' under which 'the injury' (i.e. the injury arising out of or in the course of employment) was caused, and the question whether those circumstances 'created' a legal liability in a third person to pay damages in respect thereof (i.e. in respect of that injury).

If the 'circumstances' did create that liability then section 64 (1) applies and if they did not then it does not. It follows that the relevant inquiry is whether the circumstances under which the employment injury was suffered, and for which the employer incurred, subject to s 64, a liability under the Act to pay compensation, created that liability.

In this case, the actual inquiry can be refined somewhat. Assuming that 'the circumstances' under which the work injury was caused included, but were not limited to, the causal nexus between that injury and an earlier one, did those circumstances create the liability to pay damages in respect of the subject injury?

In my opinion this question should be answered with an emphatic 'No'. My reasons are as follows: the McKenzies became legally liable to pay damages to the appellant for the injuries, and all their consequences, which he received in the motor vehicle accident in 1983. The circumstances of that accident created the legal liability to pay the appellant damages in respect of all its consequences.

The circumstances that the damages they were obliged to pay in respect of the injuries received in the motor vehicle accident contained, or may have contained, an element in respect of the later injury did not, in my opinion, mean that the circumstances under which the employment injury occurred made them legally liable to pay damages in respect of that injury." 30 The most common factual circumstances in which there is an uncontroversial identity between an injury for which workers compensation is payable and an injury that was caused under circumstances creating a liability in damages consist in two main groups. First, there are those cases in which an employee is injured in a motor vehicle accident whilst in the course of a work related journey. Secondly, there are those cases in which an employee is injured at premises of a "host employer" as the result of the negligence of the latter. In neither of these groups of cases is there any doubt that the section applies. 31 In Franklins Self Serve Pty Ltd v Wyber [1999] NSWCA 390; (1999) 48 NSWLR 249 Mason P at pars [53] to [54] considered the issue in the following terms: "[53] The section attempts to deal comprehensively with several contingencies. But its sphere of application is restricted. It applies only where rights accrue against the employer and a stranger. And subs (1) requires that "circumstances creating" liability for the compensable injury themselves also created a liability in the stranger to pay damages. The words "damages in respect of the injury" in that subsection have received a restricted interpretation, because of the necessary implication that the injury giving rise to the liability to damages is the injury which created a liability to pay compensation. Successive decisions of this Court have applied these limitations in a variety of factual situations.

[54] The limitations just noted mean that s151Z does not cover every possible eventuality where a worker has alternative rights against employers and strangers. A series of cases in this Court ( Adams, Kornjaca, Hood, Dudley, Thackham ) have recognised situations that are not covered by the section, because its opening words confine its field to that operating:

"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.

41 In Kornjaca v Steel Mains Pty Ltd (supra), the plaintiff injured his back at work through the negligence of his employer. He later suffered an aggravation of his back injury while working for another employer. The second employer claimed an indemnity from the first employer for the workers compensation payments it had made to the plaintiff. The indemnity was rejected. Glass JA said at 347: "It is necessary for the employer to prove against the party from whom the indemnity is sought that the injury occurred under circumstances which created a liability in damages to the worker. It does not seem possible to regard a pre-existing liability, which became more extensive on the happening of the injury, as one which was then created." 42 In contrast to that case, the present case does not involve a pre-existing liability in the defendant that became more extensive on the happening of the injury. Prior to the happening of the injury in this case there was simply no liability in the defendant at all. The defendant's liability was created when the relevant compensable injury occurred. That was on 22 July 2003. It was the same occasion and cause. The employer's obligation (if any) to pay compensation to the plaintiff for anything that may have occurred prior to 22 July 2003 is in my view beside the point for the reasons referred to earlier. Conclusion 43 In my opinion s 151Z(1) of the Act applies to the circumstances of the present case. I find that the plaintiff's injury for which compensation is payable under the Act was caused under circumstances creating a liability in the defendant to pay damages in respect of the injury. 44 The plaintiff and the defendant agreed that whatever the outcome of this application the costs should be costs in the cause. Mr Walsh of counsel who sought and was granted leave to make submissions on the issue on behalf of the employer argued that costs should be reserved. As the employer was not a party to the present proceedings it seems to me that Mr Walsh has no interest in, and accordingly has no standing to make submissions about, the costs order on the defendant's notice of motion. Against the contingency that I am wrong about this I propose to list the matter before me for mention at some date convenient to the parties and to the employer to be arranged in consultation with my Associate.

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