Written by Peter CarterApril 14, 2011
Part of a Gold Coast security guard’s psychiatric injury attributable to post-incident events will be un-compensable, following WorkCover’s successful strike out application in the Supreme Court last week*.
Peter Sayers was on his routine night patrol when he was confronted with the mutilated body of an occupant of a Surfers Paradise high rise resort who had fallen from a 27th-floor apartment to his death. With an “apparent lack of compassion and empathy” from his boss, Sayers alleged he was subsequently harassed and intimidated for not returning to patrol duties.
WorkCover benefits were approved and his lawyers later issued a lawsuit for a post-traumatic stress disorder which he attributed both to the discovery of the body and the subsequent harassment and intimidation. Unfortunately, as it turned out, Sayers – represented by Parker Simmonds lawyers – had not sought to have the harassment and intimidation assessed as a separate injury. Both the application for compensation and the s 275 notice of claim for damages referred only to the on-patrol confrontation as being the “event” occasioning the injury.
In resisting WorkCover’s strike out application, the plaintiff contended that the subsequent exposure through harassment and intimidation was one and the same as the original injury. It was further argued that the date of injury contained in a notice of assessment merely provided a “reference point for WorkCover which is not determinative of the actual date of injury”.
The Chief Justice had no trouble in dismissing both contentions and allowing the strikeout of that part of the statement of claim relating to the exacerbation injury. He was prepared to accept to that the assessment of a psychiatric injury from an “event” would extend to cover that injury “persisting and perhaps developing over a period of time after that date”.
On the other hand “a further event or events which allegedly led to an exacerbation of the originally sustained condition” needed to be assessed s 237(a)(i) WCRA before a lawsuit for damages could be begun. It should be noted that in both the application for compensation and in the notice of claim for damages, Sayers had answered “no” to whether or not the injury had happened over a period.
In so doing he had “expressly disavowed… a condition attributable to… some quite separate and distinct subsequent occurrence”.