Newsletter

Q3 - 2018

July - September 

In This Issue:-

* Accident on way home was found to a connection to work - employee wins compensation.

* If you give evidence, make sure that the court considers you to be reliable.

* Can you be on a smoko and be at work at the same time?

* First Category 1 offence in NSW.

* Hospital guilty after a patient sexually assaults female patient. The risk was deemed to be foreseeable.

* Can you be dismissed at the end of a fixed term contract

* Can a comma be worth US$ 5,000,000. 

* Farting at work is not bullying

* Royal Opera House made to face the music

* Duty of care to the parties with whom their sub-contractors may interact

Accident on way home was found to a connection to work - employee wins compensation

A car accident resulting in an employee losing his right hand was deemed to have had a substantial connection with his employment and was therefore compensable, a commission has ruled.

A man employed by a labour-hire company was placed to work as a farmhand at a chicken farm.  The farmhand was exhausted at the end of his shift but had a cold shower and felt refreshed. However, after driving his car for about 20 minutes on the way home, he started to nod off. The next thing he knew, he was waking up while going through a bend. The car left the road and rolled at least five times, landing on its wheels. He was able to get out but found that his right hand was crushed, split and bloody. The car then caught fire and exploded.

The farmhand applied for workers compensation according to the Workers Compensation Act 1987(NSW). He maintained the accident had occurred simply because he had been tired after the heavy manual labour, and blood tests at the hospital confirmed he had neither alcohol nor drugs in his blood. He had been in good health before the accident

There was no evidence that a mechanical fault in his car or that the state of the road had played any part in the accident.  There was no evidence that he had suffered from any medical condition or sleep-related disorder, nor indeed that he had been picking oranges as part of a second job on the afternoon before he drove home.

The arbitrator accepted that he had fallen asleep at the wheel because of work-related fatigue and that this was a real and substantial connection between his work and the accident, as required by s10(A) of the Act.

The arbitrator gave an award in the farmhand’s favour.

Simione Naivalu v Ready Workforce (a Division of Chandler Macleod Pty Limited)

http://www.wcc.nsw.gov.au/Decisions/Decisions/2959-17%20Naivalu%20COD%20SOR.pdf  

If you give evidence, make sure that the court considers you to be reliable 

Ms R. (the plaintiff) was employed by Lorna Jane Pty Ltd (the defendant) as the store manager of the defendant’s retail store at the Skygate Direct Factory Outlet (DFO).

Ms R. alleged that between July and December 2012 she sustained a psychiatric injury due to having been bullied and harassed by her Area Manager, Ms. M. She also alleged she sustained a perianal haematoma from lifting and moving heavy boxes of stock at the DFO store on two occasions.

The plaintiff’s case was that the defendant was directly and/or vicariously liable for Ms.M’s acts or omissions, because it was on notice from an email and a meeting in August 2012, that Ms.M was bullying the plaintiff and causing undue mental distress.

It was also alleged that the defendant breached its duty of care by not warning and counselling the area manager about her behaviour, and that if this had been done the plaintiff probably would not have suffered the psychiatric illness.

The case largely turned upon the credibility of each parties’ witnesses.

Following extensive cross examination of the plaintiff as to her social media activities, the court found the plaintiff was an unreliable witness who falsified her evidence. In contrast, the defendant’s witnesses were accepted as credible. Accordingly the court did not accept the plaintiff’s evidence with respect to whether the defendant ought to have been on notice of a foreseeable risk of injury, and in turn, did not accept her evidence with respect to any of the alleged behaviour by Ms.M, nor the effects of her psychiatric condition upon her capacity to work.

The court found that the defendant was neither directly nor vicariously liable to the plaintiff.

The trial judge also did not accept the plaintiff’s evidence that she lifted and moved heavy boxes of stock at work, which she alleged caused a perianal haematoma. The claims for both the psychiatric and physical injuries were dismissed.

Robinson v Lorna Jane Pty Ltd [2017] QDC 266

Can you be on a smoko and be at work at the same time? 

In a UK case it was heard that Mr Crawford worked as a relief cover signalman at various signal boxes in the South East. All (save one) boxes were single manned. Although Mr Crawford was not always busy, he was required continuously to monitor and to be on call to do things when trains were going through.

He could in practice, if he wished, take short 5 minute breaks from his workstation which would amount together to well in excess of 20 minutes over the shift as a whole. But on day shifts it was not possible to have a continuous 20 minute break. The employer argued it could aggregate these shorter periods in order to meet the 20 minute break requirement. Indeed, it argued, this was more beneficial, from a health and safety point of view.

Relying on Hughes v The Corps of Commissionaires Management Ltd [2011] EWCA Civ 1061 the EAT held that the employer's system was not compliant. In Hughes the Court of Appeal (Elias LJ) said that there should be a proper uninterrupted break from work during a rest period and, so far as possible, that break should last at least 20 minutes. Otherwise it would not be an equivalent period of compensatory rest. It was important that, during the rest period, the worker was free from work.

Accordingly, as there was no opportunity on Mr Crawford's shifts for a single continuous break from work of 20 minutes, Network Rail were in breach of their obligations under the Working Time Regulations. 

First Category 1 offence in NSW. (Reckless behaviour)

In Stephen James Orr v Cudal Lime Products Pty Ltd; Stephen James Orr v Simon Shannon [2018] NSWDC 27, the NSW District Court convicted a person conducting a business or undertaking (PCBU) with a Category 1 offence – the first prosecution of its kind – where an electrical shock lead to a fatality.

The incident occurred in August 2014 when a resident living in a cottage on a quarry suffered electrocution whilst having a shower in the bathroom of the cottage.

A category 1 offence attracts maximum penalties of

Cudal Lime Products Pty Ltd (CLP) operated a mineral mining and processing operation at an open cut limestone quarry in Cudal, NSW. Near the mine was a cottage in which Mr Barry Perceval, Plant Operator and his partner, Ms Liehr resided. On 27 August 2014, Ms Leihr was electrocuted after she came into contact with the metallic flexible shower hose and metallic waste drain in the shower which had become electrically charged due to a fault in the electrical system at the nearby mine.

The mine had a history of electrical issues and the mine safety plan (MSP) required electrical work to be undertaken by a qualified electrician or electrical engineer in accordance with the Australian Electrical Standard. At the beginning of 2014 the switchboard at the cottage was replaced after an arc fault damaged the old switchboard. At the time, CLP directed its Production Officer / Team Leader, Simon Shannon, who was not a qualified electrician or electrical engineer to perform electrical work on the switchboard.

CLP was charged with and pleaded guilty to the Category 1 offence of, without reasonable excuse, engaging in conduct that exposed Ms Liehr to a risk of death or serious injury and was reckless as to the risk of death. Mr Shannon also pleaded guilty to a Category 2 offence of failing to comply with his health and safety duty and exposing Ms Liehr to a risk of death or serious injury.

The Court found that the direction by CLP to Mr Simon Shannon to undertake work on the switchboard was motivated by a desire to save costs. The Court stated:

"the direction of an unqualified person to install the switchboard to save costs was an act devoid of social utility, so that the foresight of the possibility of the risk of serious injury or death arising was sufficient to constitute recklessness."

The Court found that the risk of death was foreseeable and that there were a number of reasonably practicable steps available to eliminate this risk
The reckless disregard by CLP of the risk was aggravated by a history of electrical issues at the quarry that ought to have put CLP on notice of the need to maintain and improve the safety of the mine.

Ultimately, CLP was fined $1.2 million, which was discounted by 25% to a fine and conviction of $900,000 as a result of its guilty plea.

Further, Mr Simon Shannon entered a plea to the less serious offence available under s 32 of the Act. The court determined a fine of $64,000 which was reduced by 25% for the plea of guilty to a conviction and fine in the amount of $48,000.

Hospital guilty after a patient sexually assaults female patient.  The risk was deemed to be foreseeable 

The Supreme Court of the ACT recently found a public hospital liable to a plaintiff who was sexually assaulted by a fellow patient who was under the influence of alcohol and had been behaving aggressively at the time of his admission to the plaintiff’s ward.

The plaintiff, a young female, was admitted to the hospital overnight. Subsequently, another patient, Mr Southwell, was admitted. Mr Southwell was intoxicated and behaving in an agitated manner. Mr Southwell had a significant history of similar attendances at the hospital. During the night Mr Southwell proceeded to abuse and sexually assault the plaintiff. The plaintiff suffered significant post traumatic stress disorder as a result.

The trial judge held at that the male patient was a “very foreseeable danger because of his history, his conduct on presentation at the hospital and his conduct after his admission and in particular in the ward…..should not have been in that ward and he should not have been so unsupervised that he was capable of freely molesting other patients“

The trial judge noted that there was “no evidence about the hospital’s funding, its capacity to provide extra nursing staff, its capacity to provide emergency warning systems and its ability to provide resources to prevent assaults by patients upon other patients. In addition, there was no evidence that (the male patient) could not have been placed in a bed in a different ward and there was no evidence that there was a shortage of beds available”

The risk of a patient such as Mr Southwell causing harm to another patient was foreseeable and not insignificant. A hospital acting reasonably would have taken precautions to avoid the risk to the plaintiff, and judgment was awarded to the plaintiff in the sum of $267,662.83 plus the costs of her proceedings.

A B v Australian Capital Territory   [2018] ACTSC 16

Can you be dismissed at the end of a fixed term contract?

Can you be dismissed at the end of a fixed term contract or can you claim ‘unfair dismissal’?  The Full Bench of the Fair Work Commission has recently overturned the longstanding principle that precluded an employee subject to a contract with a specified end date from seeking unfair dismissal relief upon the expiration of the contract term. 

In Khayam v Navitas English Pty Ltd t/as Navitas English [2017] FWCFB 5162, the employee was employed as a teacher of English, first as a casual employer from 2005 to 2012, and then on a series of fixed term contracts from 2012 to 2016. 

In late 2015, the employee was subject to disciplinary processes regarding the use of unsuitable material (being materials which allegedly promoted scientology) and punctuality. In May 2016, the employee attended a meeting in which he was advised that he would not be offered a new contract on the expiry of the existing contract due to disciplinary concerns. 

The employee lodged an unfair dismissal claim in that his employment had been terminated at the initiative of the employer. The employer contended that there had been no dismissal and that the employment contract had terminated simply through an effluxion of time. The employer's argument succeeded at first instance so the employee appealed to the Full Bench of the Fair Work Commission. 

Prior to this decision, the Fair Work Commission had held that a) when a contract for a specified period or a maximum term contract reached the nominated end date, the contract terminates through the effluxion of time and there is no termination of employment at the initiative of the employer.  b) Termination of employment at the initiative of the employer is a pre-requisite to seeking relief from unfair dismissal under the Fair Work Act. 

In this case a new principal was established:- 

Where the terms of an operative time limited contract reflect a genuine agreement on the part of the employer and the employee that the employment relationship will not continue after a specified date and the employment relationship comes to an end on the specified date.  Without any other influencing factors, the employment relationship will have been terminated by reason of the agreement between the parties and not at the initiative of the employer (invoking the unfair dismissal jurisdiction of the Fair Work Commission). 

However, if the time limited contract does not in truth represent an agreement that the employment relationship will end at a particular time, the decision not to offer a further contract will be one of the factual matters to be considered in determining whether an action on the part of the employer was the principal contributing factor which results, directly or consequentially, in the termination of the employment. For example, the employment contract may not be limited to the terms of a written document and may, for example, be one of a series of standard form contracts which operated for administrative convenience and did not represent the reality or totality of the terms of the employment relationship.

Can a comma be worth $5m 

It seem like it can, after a recent court decision in the US state of Maine.

A group of truck drivers sued their employer, Oakhurst Dairy, for failing to pay four years worth of accrued overtime. The employer denied their employees’ claims and relied on an exclusion in the law. 

The contested state law entitled employees to time-and-a-half after working 40 hours, except for the: 

·          canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of: 

·          agricultural produce; 

·          meat and fish products; and 

·          perishable foods. 

Seems like a simple case, but in law, very little is simple.  Do one of the above and you are not entitled to overtime! 

‘Packing for shipment or distribution’ was interpreted as a single activity, and because the truck drivers only ‘distributed’ and did not ‘pack’ the goods for shipment, the exemption did not apply. The workers claimed that they were therefore entitled to payment for overtime. 

This interpretation prompted the settlement by Oakhurst Dairy. 

The legislation has since been amended to expand the exclusion by inserting an Oxford comma between ‘packing for shipment’ and ‘distribution’ so that these activities are considered as separate tasks. 

 O'Connor & Anor v Oakhurst Dairy & Ors No. 16-1901 (1st Circ. 2017) 

Farting at work is not bullying

The plaintiff, Mr David Hingst, was employed by the defendant, Construction Engineering (Aust) Pty Ltd, as a contract administrator from 13 May 2008 to 8 April 2009.  

It is important to record that the plaintiff prepared his own case and was self-represented at trial.

Mr Hingst claimed that he was bullied in the workplace during this period and, as a result, has developed psychiatric and physical injuries, for which he is entitled to damages in the sum of $1,805,138. He further complains that the defendant unlawfully terminated his employment.

The law on bullying imposes on an employer a duty to take reasonable care to avoid causing its employees a recognisable psychiatric injury.

The defendant denied all the claims and Justice Rita Zammit did not believe Hingst was bullied at work, and in dismissing the claim, accepted that his redundancy was genuine.

Hingst alleged to the court that his supervisor, Greg Short, would “lift his bum and fart” on or at him, sometimes daily.

Short told the court while he remembered farting, he didn’t recall thrusting his backside directly at Hingst to deliberately offend him.

He said that there may have been some cultural misunderstanding because Hingst was German, and didn’t really understand that farting was just an Australian way of joking around.

Short said: “I knew that [Hingst] took quite offence to it and I – to be honest at the time I didn’t understand, but then obviously realising it was [Hingst] being [of] German descent, whereas us Australians are sort of brought up you sort of accept it or think oh it’s just – that’s what happens.”

The court heard that Hingst labelled Short “Mr Stinky” and at one stage sprayed him with deodorant.

Zammit rejected Hingst’s claims of “malicious” flatulence, saying it was “an offence that has its origins in cultural difference — rather than the sort of fear, distress, humiliation or victimisation that one would ordinarily expect in a bullying scenario.”

The courts decision was that the plaintiff has not established any negligence on the part of the defendant. He has failed to show that the defendant breached its duty to take reasonable care to avoid causing its employees a reasonably foreseeable and recognisable psychiatric injury. There was no evidence that the defendant knew, or should have known, that the plaintiff was at risk of mental harm.

Mr Short did not bully or harass the plaintiff. Nor did any other employee at the defendant company. It follows that the plaintiff’s bullying claim must fail. The plaintiff’s unfair dismissal claim must also fail as his redundancy was genuine.

The trial lasted 18 days and involved 15 witnesses.

Hingst v Construction Engineering (Aust) Pty Ltd (No3) [2018] VSC 136 

Royal Opera House made to face the music 

When is ‘loud’ too loud, and if you are part of the problem, is there recourse for your injury?

Violist, Chris Goldscheider, has succeeded in a landmark UK High Court case against the Royal Opera House Convent Garden Foundation. This case marks the first time 'acoustic shock' has been recognised as a compensable condition in the UK and the first time the High Court has explored the music industry's legal obligations towards the hearing of musicians.

In 2012 the plaintiff was a violist in the orchestra pit during a rehearsal of Richard Wagner's opera Die Walküre (The Valkyrie) at the Royal Opera House at Covent Garden.  During the rehearsal, the plaintiff was sitting directly in front of the 18-piece brass section when the noise level reached around 137 decibels causing irreversible damage to the plaintiff's hearing.  (the average human pain threshold is reached at 110 decibels)

Damages were claimed for acoustic shock with symptoms including tinnitus, hypersensitivity to noise, headaches and dizziness. The plaintiff spent 18 months recovering from his injury and eventually left the Royal Opera House in July 2014 as a result of the injuries.

The defendant claimed that the plaintiff had coincidentally developed Ménière's disease, a natural hearing condition that can also cause dizziness, at exactly the same time as the loud burst of noise that the plaintiff claimed caused his acoustic shock.

The plaintiff, like many musicians, did not wear earplugs through the entire rehearsal but rather, put them in when he considered noise levels were high. The defendant argued it could not reasonably require musicians to wear ear protection at all times as a factory would because "the noise produced by the professional orchestra is not a by-product of its activities, it is the product."

The Hon. Mrs Justice Nicola Davies DBE. Handed down her judgement in March 2018 in favour of the plaintiff on the issues of breach of duty and causation of injury. She considered that the defendant's argument in relation to the plaintiff coincidentally developing Ménière's disease was "stretching the concept of coincidence too far".

The judge held that the defendant was in breach of a number of provision of The Control of Noise at Work Regulations 2005.

She found a clear factual and causal link between the identified breaches of the Regulations and the high level of noise which ensued at the rehearsal causing the plaintiff's injury.

The breaches included an inadequate risk assessment and failure to undertake monitoring of noise levels in the cramped orchestra pit.

The defendant argued that a balance had to be struck between preserving the artistic integrity of music while doing everything possible to reduce the risk of damage to musicians' hearing, that was an inevitable feature of playing long-term in an orchestra.

Christopher Goldsheider v The Royal Opera House Covent Garden Foundation [2018] EWHC 687 (QB) 

Duty of care to the parties with whom their sub-contractors may interact

A recent NSW Supreme Court case confirms that principal contractors may not owe a duty of care to the parties with whom their sub-contractors interact.

In the case of Bettergrow Pty Limited v NSW Electricity Networks Operations Pty Ltd as trustee for NSW Electricity Networks Operations Trust t/as TransGrid (No 2) [2018] NSWSC 514:  the plaintiff Bettergrow, a waste management company, sued for damages after receiving a consignment of asbestos contaminated waste which it was not licensed to process and was not advised of the contamination.  

They only realised later, after testing, that the mud was contaminated, requiring the whole facility to be closed down for decontamination for seven weeks to clean it, causing a claimed loss of $1.5 million.

Bettergrow brought a claim of negligence against each of TransGrid, Powercor, TTR and On-Line, the contractors and sub-contractors on the site.

In order to succeed, a claim of negligence requires that the negligent party owe a duty of care to the injured party, and have breached that duty. Bettergrow argued that TransGrid had a special duty of care – a non-delegable duty – which would have made it liable for the negligence of all the sub-contractors.

The NSW Supreme Court however has dismissed a claim for damages against TransGrid and three subcontractors for the delivery of the contaminated waste.

·         TransGrid had carried out testing and was aware of asbestos contamination at the site. TransGrid  had disclosed that information and required contractors to prepare specific plans to manage risks at the site, including the risk of encountering asbestos and disposing of any asbestos contaminated waste. 

·         Powercor Network Services contracted with TransGrid to refurbish the Beaconsfield site.  The contract noted that the soil at the site was classified as contaminated with asbestos, and that all disposal needed to be carried out in accordance with that classification.  Powercor prepared an Asbestos Management Plan. 

·         Powercor engaged TTR Construction & Excavation Pty Limited (TTR) to carry out some civil works for the refurbishment. Powercor was obliged under its contract to get TransGrid's approval for the appointment of subcontractors, but did not do this in relation to TTR. TTR was given the Asbestos Management Plan and told about the contamination risks. 

·         TTR engaged On-Line Pipe & Cable Locating Pty Ltd to carry out "non-destructive digging" work, which involved water blasting of soil and removal of the resulting excavated mud.  On-Line gave evidence (which was accepted) that TTR did not mention the asbestos risk.  On-Line was not licensed to dispose of asbestos contaminated materials and the Court found that it would not have accepted the job if it had known of the asbestos issue. 

A non-delegable duty of care is one that cannot be passed on to someone else. It is a duty on the principal person owing the duty to ensure that reasonable care is taken by others in carrying out a particular task.

Bettergrow argued that TransGrid owed such a duty, and that therefore TransGrid was liable for the damage caused by sub-contractors failing to take reasonable care regarding asbestos contamination.