Written by Peter CarterApril 1, 2013
Woolworths took no umbrage at a compensation claim arising out of the conduct of the butchery at its Ayr supermarket until it was made clear that the event for which damages were being sought was exposure to working practices over a period of time.
Thomas Ley’s claim was for pins & needles down his arm that began to occur while “slicing meat” on 4 January 2011. On 1 February 2011 – his second day back on regular duties after three weeks annual leave – he had agonising pain in the back of his neck and left shoulder.
His claim for that injury was accepted.
Orthopaedist Richard Gibberd reported on 12 December 2011 to Woolworths that he had suffered a minor aggravation on 4 January to a pre-existing degenerative condition.
The same day and 4 days before the grocery giant issued a notice of assessment at 0%, his solicitors urgently lodged a NOCD under caution that the injury may have had its onset at his employment commencement date of 17 December 2008.
His NOCD recorded the event that resulted in his neck injury as repetitive lifting, manoeuvring and carrying boxes of cryovaced “primal meat” cuts weighing up to 25kg – often in cramped cold room conditions – over a 6 week period.
The NOCD was requisitioned by Woolworths on the basis that the injury for which he was seeking damages was different to that referred to in his application for compensation. It acknowledged an entitlement to proceed under section 237(1)(d) only and specified copious conditions upon which it was prepared to allow the claim to proceed.
Ley refused to withdraw the NOCD and sought a section 258 response only in respect of the unassessed psychological injury. He sought declaratory relief that he was entitled to proceed under section 237(1)(d) in that the neck injury had already been assessed.
Picking up where he left off in Muckermann v Skilled Group, his honour re-emphasised that an injury must not be constrained in the assessment process with a view of how it originated. Such history is relevant only in the evaluation of common law liability and damages.
“So while it may be that different events within the meaning of that term found in section 31 of the WCRA have been expressly or by implication identified when the application for compensation is compared to the notice of claim for damages, on the view I take, [it is] the same injury”.
That Dr Gibberd had assessed a discrete exacerbation injury and disagreed with the notion that the applicant had suffered an injury over a period of time because of workplace practices, was irrelevant.
“The doctor was expressing a medical opinion not a conclusion involving a mixed question of law and fact that the question of the meaning of the term “injury” poses. To illustrate the absurdity of the position in which a claimant may find himself – what his honour described as a “parallel universe” – the grocery titan in May 2012, referred a series of questions to surgeon Brett Halliday to elicit from him an answer under WCRA section 258 (1)(a)(ii), that exposure to the work practices described was not responsible to any extent for the applicant’s condition.
That answer in hand, Woollies then concluded that “there being no injury to be assessed, he was precluded from seeking damages” unless he could successfully challenge its decision in a review or appeal.
Such ruse would not succeed in the case of Mr Ley.
“The respondent would have it that the applicant may only seek damages for whatever injury he sustained on 4 January 2011…. For the reasons I have given this contention should be rejected. The applicant’s neck injury has been assessed. The nature, extent and cause of it and how it might sound in damages should be explored under parts 5 and 6 of chapter 5 of the WCRA and if it must be, at a trial.”
The artifice constructed by Woolworths in an endeavour to shrink the gateway through which the claimant was required to pass to argue for damages, was in this instance, ill-conceived. The declaration sought by the applicant was granted with costs.