SA Quarterly Personal Injury Update: July 2020 - Legalwise Seminars

Robert Katsambis, Barrister at Kent Town Chambers, provides an important update in the changing world of personal injury litigation, particularly in workers compensation. He will delve further into this topic, with a closer look at key cases at the upcoming Personal Injury SA: Quarterly Update – July webinar on Thursday 30 July 2020.

A lot has been happening in recent months in the world of personal injury litigation in South Australia. The new rules governing personal injury claims under the UCR are now being navigated by practitioners in the common law arena, and the workers’ compensation jurisdiction continues to be a very busy one in the way of decisions handed down by the Full Bench of the SAET and the Full Court of the Supreme Court.

SA Workers Compensation

It is now settled that employment need not be the only significant cause of a psychiatric injury in order for it to be a compensable injury under the RTW Act, although employment must nevertheless be the most significant cause of the injury (The State of South Australia (In Right of the Department for Education) v van Hattem (No 2) [2020] SASCFC 45).

There has also been recent authority from the Full Court in relation to similarly-worded provisions of the repealed Act, which the author suggests would likely inform the application of the equivalent sections of the RTW Act. That is:

• Where there is a physical impairment that arose from a psychiatric injury, under the repealed Act, a claim for lump sum compensation in respect of that physical impairment could not be defeated by s 43(5), which excluded an entitlement to lump sum compensation “in relation to a psychiatric impairment” (Walker v Return to Work Corporation of South Australia [2020] SASCFC 55); and
• Where an injury arose in the course of a journey, under the repealed Act, the requirement that there be a “real and substantial connection” has now been held not to have required a causal connection between the employment and an accident, and such a connection may exist where the employment merely increased the risk of the accident that occurred (Mills v Return to Work Corporation of South Australia [2020] SASCFC 36).

In two Full Bench decisions of Return to Work SA v Dowden [2020] SAET 54 and McPhail v Return to Work SA [2020] SAET 54, a multi-factorial test was formulated as to whether a given medical procedure can be considered to be “surgery” within the meaning of s 33(21)(b)(ii) of the RTW Act. That test involves a consideration of a multitude of factors, such as whether the treatment would result in permanent or semi-permanent alteration of the body, as opposed to merely providing temporary symptom relief.

Practitioners should be aware of the recent Full Bench decision of Return to Work Corporation of South Australia v Summerfield [2020] SAET 106, which involved a discussion as to the correct application of the Full Court’s decision Preedy, as well as the correctness of Preedy itself. Although Preedy remains good law, it is expected that Summerfield may be used as a vehicle to agitate for change to the combination principles under the RTW Act.

Other Full Bench decisions surrounding the assessment of permanent impairment, such as Opie v Return to Work Corporation of South Australia [2020] SAET 62 and Return to Work Corporation of South Australia v Cooper [2020] SAET 117, will be considered in the Seminar.

Common Law Personal Injury Matters

Seven years on there is yet to be any judicial authority on the ISV in the case of motor vehicle accidents causing personal injury. Nor has there been any recent intermediate appellate court or High Court authority which has developed the common law of negligence as it applies in South Australia.

Rather, the main focus in common law personal injury litigation in this State has come recently with the commencement of the Uniform Civil Rules.

The Seminar will consider a number of issues facing practitioners, including what a court is likely to do when proceedings are commenced without parties having complied with the new pre-action rules, particularly in cases where an injury has not stabilised, as well as a discussion around the amended rules of pleading and disclosure amongst other topics.

The Seminar will be accompanied by a structured, written guide to the UCR as it relates to personal injury claims for use in day-to-day litigation practice.

Robert Katsambis came to the bar in 2019 and specialises in common law personal injury litigation, South Australian workers’ compensation law, and compensation litigation under the Safety, Rehabilitation and Compensation Act. Robert also teaches the law to undergraduate students at the University of Adelaide. As part of his commitment to keeping on top of the rapid developments in South Australian workers’ compensation law, Robert regularly publishes content for solicitors in this practice area in a concise fashion which allows practitioners to spend minimal time keeping up with this evolving area of the law without detracting from the demands of day-to-day legal practice. Robert operates a modern, innovative practice which utilises the technology of the 21st century to provide efficient legal services and timely advice in the demanding climate in which litigation practitioners operate. Connect with Robert via email or LinkedIn