Duty owed by rehabilitation provider to injured worker

Posted on February 14, 2010 by Julian Johnson

 

In a recent District Court decision by Judge Davis, an interesting issue as to the obligations owed by a rehabilitation provider to an injured worker were explored. 

The Decision, Lines v Workfocus Australia Pty Ltd [2009] WADC 203, delivered on 23 December 2009 confirmed, though it appears this may have been something conceded by the Defendant, that a rehabilitation firm owed a duty to the relevant worker, Mr Lines, to exercise reasonable care and skill in the provision of their vocational rehabilitation services to that worker.  The case arose in the context of a return to work program, during which Mr Lines had apparently aggravated his initial work injury.

For my part, there has always been some controversy concerning the rehabilitation providers’ obligations to the worker given the potential for conflict between the interests of the worker and the party meeting the costs of such rehabilitation, the insurer.  

Although this issue was not identified by Judge Davis, her finding that a duty of care was owed to the relevant worker implicitly supports a view that any such conflict must be resolved to the benefit of the worker.  Judge Davis articulated the obligations owed by a rehab provider to the worker, relevant to design of a return to work programme as:

I consider that the precautions which a reasonable person in Workfocus' position would take against the risk of a worker suffering a further back injury while on a return to work program would be to:

1. Consult with the worker's doctor about the worker's injury, the medical diagnosis, the prognosis, any restrictions on the workers' physical abilities and any recommendations which that doctor had to assist the worker to return to work.

2. Obtain the approval of the workers' doctor to all stages of the return to work program.

3. Advise the worker that if he has any increase in symptoms, that he let his supervisor know, and also notify the vocational rehabilitation provider so that the provider can both amend the return to work program and follow up with the worker's doctor

The most interesting observation that can be made, is that on this test, the worker's own doctor (presumably their GP) has enormous importance and effectively, unless they are prepared to approve of a program, a rehab provider cannot insist upon the worker's participation.

Judge Davis, found that all of these matters had been observed by the provider.

The decision has been appealed against by Mr Lines.

 

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Personal Responsibility + Society's "Parenting" Role

Posted on November 15, 2009 by Julian Johnson

Again, slightly off topic, though the broader consequences apply in a healthcare context.

Read with interest the Editorial in the Weekend Australian yesterday about the High Court's recent decision, with the less than informative name, C.A.L. No 14 Pty Ltd v Motor Accidents Insurance Board [2009] HCA 47.

The facts in the case were simple:

  1. the case concerned a claim of negligence against a Tasmanian hotel owner who handed back motorcycle keys lodged for safe-keeping to an insistent, belligerent patron who on leaving the pub was killed in a crash while showing a blood alcohol level of 0.253.
  2. A reading of 0.05 doubles the risk of a crash. At 0.08, the risk increases seven times. At 0.15, it is 25 times higher. Data was too scant to reliably calculate the risk at the level taken by the dead man.
  3. The man had drunk seven or eight cans of bourbon and cola between 5.15pm and 8.30pm. According to the judgment, the licensee told him he had had enough, that it was time to go home, and asked for his wife's phone number so that she could fetch him. The patron became agitated and said "If I want you to ring my f'ing' wife, I'd f'ing ask ya." The Licensee responded: "Whoo hang on, whoo, whoo, whoo, this is not, you know, don't go crook at me, this is not the arrangement that was made." Not having the wife's phone number, and not wanting to push the issue into further confrontation the licensee then gave the keys to the patron, after asking him three times if he was OK to drive

As has been widely reported (to the joy of many in the hotels industry), the High Court dismissed the claim against the publican, finding that no duty was owed to the driver that had been breached.

I accept the points made in the Australian, concerning the need for our society to accept individual choices and responsibilities.

On the other hand, when regard is had to the carnage each year on the roads due to alcohol, such 'individual responsibility" is hardly a promising or pro-active step to saving our bright young things from self-destruction on the road.  

Quite apart from the case of habitual heavy drinkers, who has not had opportunity to intervene when friends and loved ones might out of character have had a bit much to drink and required a tap on the shoulder and gentle insistence on a lift home?  It is a consequence of intoxication that it impairs judgement, not just behind the wheel but in getting behind the wheel in the first place.

The Court's decision seems to ignore the more complex issues behind public safety and the 'cost' of irresponsible alcohol sale, instead championing a self-determinant right to self-destruction (and potentially harm to innocent third parties on the road).

With respect there is much to be said of the comments in the Age, concerning this decision, which reach a very different conclusion to the Editorial in the Weekend Australian.

 

 

 

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Miller - no duty owed by driver of stolen car

Posted on November 13, 2009 by Julian Johnson

Although not concerning medical negligence cases, this case is of interest.

In this recent Court of Appeal decision (delivered 6 Nov 09), the Court found that a driver of a stolen car did not owe any duty of care to a passenger in such vehicle, who was aware of the fact the car was stolen.  The Court found the driver and passenger were engaged in "a joint criminal enterprise" and so no duty to take care arose.

Consequently, when the driver drove negligently colliding with a pole causing injury, the passenger, who at the time was a 16 year old girl, could not recover compensation for her injuries.  The passenger's injuries were serious and another passenger in the vehicle died from their injuries.  

The passenger was in a relationship in which she regarded the driver as akin to her 'uncle' and at trial evidence had been lead indicative of the driver's insistence that the passenger remain in the vehicle, when she had asked to be dropped off.  She had made this request when the driver, after initially driving safely, had started to speed and drive more dangerously.

I would have thought, with respect, that this final point would have removed any 'joint criminal enterprise" finding.  The passenger wished and requested to be let out of the car.  Had her request been followed, the joint illegal conduct (driving the stolen car) would have come to an end and she would not have been in the car at the time of the collision.  This point was recognised and commented upon by Buss JA.  I am surprised it wasn't emphasised more by the passenger.

Newnes JA, the other member of the Court based his conclusions on a view that:

"the respondent could not reasonably have expected that the appellant would drive the vehicle according to the ordinary standard of care" 

With respect, this seems to me to make a great leap.  Why was the fact the passenger's 'uncle' was driving a stolen car, necessarily reason to assume he would not drive safely and would put the occupants of the vehicle at risk by dangerously driving?  Also, what is the relevance to this of the fact, as stated above, that the passenger had requested to be let out as soon as the driver started to drive unsafely?  Doesn't this say anything of her expectations?

This decision reversed the trial judge's conclusion in favour of the passenger.

No doubt a shortcoming on my part, but with the greatest of respect, I can't understand the reasons for this conclusion.  McLure JA and Buss JA suggest the foundation for such view is that given the illegality of the enterprise it is not possible to ascertain an appropriate standard of care to be expected [R3] + [R81].    

Buss JA stated [R82]:

It is not feasible or appropriate for the law to endeavour to fix a standard of care by taking into account and evaluating the incidents of the criminal enterprise upon which the appellant and the respondent were jointly engaged

I for one am not sure why this wasn't feasible or appropriate.

Clearly a tough stance for our highest court. 

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