Description
A forum for interaction about Workcover South Australia and the experiences of Injured Workers.
My Links
»
»
»
»
»
|
Workers again pay price of a bad system
Interesting article from former workcover board member.
From Tthe Advertiser Feb 9th 2007
Workcover management wants to make big cuts in compensation payments to injured workers. The rationale is that injured workers are to blame for WorkCover's poor performance, rather than its own inability to manage the scheme.
Cuts include significant reductions in weekly payments, moves to throw all but catastrophically injured workers off the scheme after two years and measures to restrict injured workers from challenging Work-ver claims decisions.
Most of these proposals are based on Victorian provisions im-mented by gung-ho Liberal
premier Jeff Kennett in the 1990s. According to WorkCover whose executives are quite handsomely paid, compensation payments to injured workers are "too generous". While weekly benefits in South Australia are certainly among the best in the country, compensation for serious disability and work-related deaths is substantially lower than in other jurisdictions, such as New South Wales and Queensland. SA is also the only mainland state that does not permit injured workers to take common law actions against their employers for negligence.
The root cause of WorkCover's problems is the lack of effective rehabilitation. For many years, WorkCover management has fail-ed to deliver in this critical area. Not surprisingly, WorkCover's return-to-work outcomes have deteriorated and so has its financial performance.
Reasons for this lacklustre performance are not hard to find. WorkCover has adopted a hands-off management style and is increasingly out of touch with the
needs of injured workers and their employers. Its management culture is largely content-free and staff morale is near rock bottom.
Overwhelmingly, injured workers want to return to work but often, especially in the case of serious injury, they need a helping hand from WorkCover to do so. In too many cases, this is not happening. The result is that SA's retum-to-work rate is now the worst in Australia.
The Stanley Review in its December, 2002, report highlighted many of the management problems with WorkCover's return-to-work performance.
The problems identified by Judge Stanley included Work-Cover's failure to provide early rehabilitation for injured workers and its lack of innovative retum-to-work programs.
Not much has changed over the past four years. The number of claims agents used by WorkCover has been reduced from four to one but where are the innovative return-to-work programs?
Part of the problem is that WorkCover has increasingly positioned itself as a contract manager rather than as a workers' rehabilitation and compensation agency.
In the process, it has lost sight of its core business, which is to aid injured workers and employers with the retum-to-work process.
WorkCover is strong on spin but weak on performance.
Only a few months ago, it was congratulating itself on the "good progress" it was making in returning injured workers to work. But if that were the case, why at the same time was it scheming to cut workers' entitlements?
The bottom line is that Work-Cover's slash-and-burn proposals to reduce workers' entitlements are self-serving and an admission of its inability to manage the scheme. What SA workers and employers urgently need is a WorkCover management that is part of the solution, not part of the problem.
• There is no need to cut payments to injured workers or raise premiums paid by employers.
• What is needed to get the WorkCover scheme back on track is good management not bad legislation.
• Its time retraining was seen as an investment, not just a cost. We have a growing skills shortage. With well thought out retraining programs WorkCover can help injured workers as well as South Australian employers, and reduce its long-term liabilities in the process.
• WorkCover needs to treat injured workers as people not claims.
Dr Kevin purse is a research fellow with the Hawke Research Institute at the University of South Australia and a former WorkCover board
|
Posted by Reader at 6:12 PM, 9/2/2007 |
Link |
|
Media Mouth
If anyone wants to email the media man at Workcover.
His name is Paul Roberts
email: PRoberts@workcover.com
|
Posted by Anonymous at 9:53 PM, 21/2/2007 |
Link |
|
hansard..21/02/07 House of assembly.."Latest rort of the Rann Labor Government"
HEALTH AND SAFETY GRANTS
Mr WILLIAMS
Mr WILLIAMS (MacKillop): Today the house learnt of the latest rort of the Rann Labor government of taking $3 million of taxpayers' money and channelling it into the unions. How much will come back? We know that the union movement is one of the biggest contributors to the ALP campaign funds. This is a simple case of laundering taxpayers' money through the union movement and back into the ALP. This is a rort of the first order.
The minister has been caught out. He ostensibly issued a press release in December. The member for West Torrens laughs. I invite him to go to the library and ask the library staff from where they obtained their copy of the press release. The copy that they now have in the library was scanned from the one that I have in my hand, because the library staff had never seen it. The member should go to any of the industry associations around Adelaide and ask them from where they obtained their copy. They obtained their copy following the SafeWork SA Advisory Committee meeting in early February; that is where they got it from. I do not know how long the unions have had their copy—probably since 16 December. I have spoken to a number of journalists around Adelaide, and not one to whom I (or some of my colleagues) have spoken was aware of this press release, which was ostensibly sent out by the minister on Saturday 16 December, just after parliament rose.
Let me talk a little about process. In answer to a question today in the house, the minister said that he fought tooth and nail to get the SafeWork SA Advisory Committee into the act. Why does he not use it? The SafeWork SA Advisory Committee website states:
The committee has been created to ensure that the government receives top level advice from industry leaders and senior workers' representatives.
If the minister took no advice on this matter from the committee (and I know that he did not, because it did not know about it until February), from where did he obtain his advice? He stood here today and said that he took advice from all the stakeholders. I can inform members that he did not take it from top level industry leaders or senior workers' representatives.
Mr Koutsantonis: Like who?
Mr WILLIAMS: I will read out the names of the members of the committee, if the member wants me to.
Mr Koutsantonis: All right.
Mr WILLIAMS: They are: Amanda Wood, Managing Director, A Class Metal Finishers; Janet Giles, Secretary, SA Unions; Maurie Howard, industrial relations consultant, Master Builders Association; Don Farrell, Secretary, Shop Distributive and Allied Employees Association; Margaret Heylen, consultant with wide experience in the public and private sectors; Jill Cavanough, Organiser, Australian Education Union; David Frith, Director, Workplace Policy and Business Services Development, Business SA; and Martin O'Malley, President, SA Unions, and Secretary, Construction, Forestry, Mining and Energy Union. Michele Patterson, Executive Director of SafeWork SA and Julie Davison, CEO, WorkCover Corporation, are ex officio. It is chaired by Tom Phillips. They are the members, and they did not know about it. They found out about it at their meeting on the first Tuesday of February this year.
#18 It also says that the committee will oversee the strategic direction of SafeWork SA and will provide leadership on workplace safety. Where is the minister getting his leadership from? Why was their advice not sought? Probably because they are not the best people to ask how you launder $3 million worth of taxpayers' money—how you channel $3 million worth of taxpayers' money into the union coffers and then you go around the corner a couple of days later and say, `Come on boys, how about a bit of money for the election campaign. We have got a federal election coming up at the end of the year and we need a bit of money'—$1 million a year over three years.
In question time I read out one of the principal functions. One of the principal functions in the act that I did not mention was to promote OH&S programs and make recommendations with respect to the making of grants in support of projects and activities relative to OH&S. If that is one of their functions, where were they in this matter? The minister has been caught out rorting.
Time expired. |
Posted by Reader at 10:21 AM, 23/2/2007 |
Link |
|
WORKCOVER CORPORATION (AUDITOR-GENERAL) AMENDMENT BILL
WORKCOVER CORPORATION (AUDITORGENERAL) AMENDMENT BILL
Adjourned debate on second reading.
(Continued from 22 November. Page 1103.)
The Hon. I.K. HUNTER: The government opposes this bill. The bill introduced by the Hon. Mr Xenophon seeks to delete the section of the WorkCover Corporation Act 1994 which specifically requires that WorkCover must appoint two or more external auditors within the first three months of each financial year to audit the corporation's annual accounts and replace it with the Auditor-General, who may at any time and must at least once in each year audit the accounts of the corporation. Three of the top four global firms are currently involved in the auditing of WorkCover: Price Waterhouse Coopers, which conducts an internal audit; KPMG, the lead external auditor; and Ernst & Young, the reviewing external auditor. In addition, the outstanding claims liability is assessed twice yearly by Finity Consulting Pty Ltd, which is a specialist actuarial consulting practice. Each of the two external auditors I have already mentioned also engages their own actuarial advisers to provide a further review of the liability. Further auditing is just not necessary and, in the end, more time will be spent dealing with the auditors than getting workers back to work.
To summarise, WorkCover engages three of the top four global accounting and audit firms during the process of adopting the annual accounts. The assertion that WorkCover is free from scrutiny is seriously flawed. Improved return to work rates is crucial to bringing down the unfunded liability. A number of strategies have been put in place to help achieve this, such as the appointment of a single claims agent with a contract based on a simple principle; we pay for results. This is what we need to focus on, and not another set of auditors. I urge honourable members to oppose this bill.
The Hon. R.I. LUCAS (Leader of the Opposition): I rise to speak briefly to the second reading of the bill. For the added reasons of Hansard the Liberal Party's position has been more fully put in the debate on the last Wednesday of sitting on Notice of Motion No. 37, which was the motion that I moved to ask the Treasurer for an investigation of the position of WorkCover under section 32 of the Public Finance and Audit Act.
Briefly, I indicated then that the Liberal Party's position is that we believe we are facing a critical situation in relation to WorkCover but, frankly, we think the problem is better addressed by a once-off inquiry or investigation by appropriately qualified persons such as through a section 32 investigation under the Public Finance and Audit Act. As I indicated in that debate, we indicated that we do not think that the traditional auditing of the accounts (and this is part of the argument from the Hon. Mr Hunter on behalf of the government) is the critical issue in relation to WorkCover, because we have not had any evidence that the well qualified private sector auditors have not been doing an appropriate job in relation to the auditing of the accounts of WorkCover.
Nevertheless, we are facing a very significant issue in relation to WorkCover performance and we therefore do share common ground with the Hon. Mr Xenophon that something needs to be done. It is our view that the office of the Auditor-General (I am not speaking about the individual) is not in our view, at this stage anyway, the appropriately geared and qualified institution or office to conduct once-off investigations of the problems in relation to WorkCover. So our preference is a section 32 inquiry.
Our position in relation to this debate tonight will be to support the second reading to allow continued debate in the committee stage.
The Hon. Nick Xenophon: You are not opting to oppose the third reading, are you?
The Hon. R.I. LUCAS: No; as I indicated in the debate on my motion, we are leaving open the option of supporting through the committee stage, possibly with an amendment of the legislation ultimately, subject to what the government decides to do in relation to our motion on a section 32 inquiry. I would hope that the government has had section 32 inquiries on a range of issues much less significant (in terms of total dollars) than WorkCover.
An honourable member interjecting:
The Hon. R.I. LUCAS: Well, the Port Adelaide flower farm. However, I am talking about recent times and things like the Basketball Association which, I think, was a section 32; I think the McLaren Vale ambulance station may also have been a section 32. There have been two or three section 32 inquiries which, in terms of dollars of involvement, have been nowhere near as significant as the problems potentially confronting the state, businesses and workers in relation to WorkCover at the moment.
As I said, our position is to support the second reading of this legislation and leave open our position in relation to the third reading. At the next Wednesday of sitting we are looking to finalise debate on our motion for a section 32 and are hopeful that the government will be prepared to support a section 32 inquiry. Subject to that, we will make a final judgment in relation to the third reading of this legislation.
One White
\IND\Speech:nn:The Hon. NICK XENOPHON The Hon. NICK XENOPHON: I am absolutely gob-smacked that the government will not support this bill. I would like to remind government members what was said on Tuesday 13 May 2003 by the Hon. Michael Wright, the Minister for Industrial Relations, when introducing the Statutes Amendment (WorkCover Governance Reform) Bill—a bill that lapsed. There was a clause in that bill that would give the very powers that have been proposed in this bill to the Auditor-General. At that time the minister said:
The powers of the Auditor-General will be fully applicable to the WorkCover Corporation. This will provide for greater scrutiny of the WorkCover Corporation's financial arrangements.
What has changed in the past almost four years is that WorkCover's financial situation has deteriorated, and the government is putting its head in the sand. The Hon. Mr Hunter is putting the government's position, and I am not trying to shoot the messenger, I am not being critical of him personally in anyway, but the fact is that under the Public Finance and Audit Act, particularly under section 37, the Auditor-General would have power to do an economy and efficiency review, going beyond the scope of what private auditors can do.
When you consider the matters that were raised by the late Brad Selway on the concept of managerialism and the implied guarantee and comments made by the Auditor-General in relation to current arrangements in terms of the implied government guarantee and contingent liabilities of the WorkCover Corporation, it does not make sense that the government has now changed its mind and done an absolute backflip on this issue. In almost four years it has gone from wanting to give the Auditor-General these powers, the very powers that are being proposed in this bill, to now not wanting to—with liabilities of some $700 million. I find it incredible that the government is going down that path.
I have heard from my sources, sources very close to your side of politics, Mr President, that the government is looking at slashing WorkCover benefits to injured workers. That really concerns me, and I hope it is not the case, but we can at least begin to address some of the problems with the corporation with the state's independent financial watchdog, whoever that may be after tomorrow, given that the current Auditor-General has reached the statutory retirement age. It is a pity that we could not have the Auditor-General for at least a couple more years to look at issues, and it is a pity that broader issues of effectiveness could not be considered, as they are in other jurisdictions.
The fact that the government is opposing this legislation begs a number of serious questions. We have not seen the end of this WorkCover saga yet, and I fear that those who will suffer the most will be the injured workers in this state.
Providing the state's chief financial watchdog with the opportunity to scrutinise WorkCover's accounts to look at issues of economy and efficiency using the broad powers under the Public Finance and Audit Act would at least have been a positive step. The government needs to explain to the people of this state why it no longer wants the Auditor-General to have these powers. What does it have to hide?
I recommend that honourable members support the bill. It is an important measure in the context of ensuring that WorkCover is functioning well and performing appropriately so that, ultimately, both employees and employers in this state get value for money and a fair deal from the state's statutory workers compensation insurer.
Bill read a second time. |
Posted by Reader at 10:37 AM, 23/2/2007 |
Link |
|
Rosemary is very ill
This may not be news to most of you, but I got a huge shock when I spoke with her a few minutes ago.
I suddenly understood just how hard my life would be if Rosemary was not able to continue her fight on our behalf -not due to lack of funding or support, but because years of abuse dealt out by WorkCover to people she cares deeply about has weakened her own health.
Rosemary told me she has spent the last 8 days in hospital, and that really she has been very ill since the last Forum in November, when she collapsed at the end of a very long intense period of time putting in place the Forum for all of us.
All of us lean on her, and not once has she ever asked one of us to stop or to help her in any way.
For those who believe that WorkCover is intollerable as it is now, think just how much harder it would be if you had to face it without Rosemary fighting for you.
Gaylene
|
Posted by Gaylene at 12:59 PM, 8/3/2007 |
Link |
|
Man burnt at Zinifex but "it" won't slow down production.
Zinifex says lead production won't be affected by burns accident
Thursday, 08 March, 2007
Content provided to you by AAP.
MELBOURNE, March 8 AAP - Zinifex Ltd says lead production will not be affected at its smelting plant at Port Pirie, north-west of Adelaide, after a worker suffered serious burns.
"As it stands no, lead production isn't affected down there," a Zinifex spokesman said.
The spokesman said that at the moment the company was still investigating what occurred.
"As it stands, production is not affected, but there's a nunmber of preliminary investigations and hopefully with the result of those we'll have a much better indication," he said.
"There's been a discharge of molten material and unfortuantely one of our people has been in the path of that molten material."
At 1348 AEDT Zinifex's shares were down 41 cents or 2.45 per cent at $16.30.
A man suffered burns to as much as 60 per cent of his body in what has been described as an explosion.
The South Australian Ambulance Service said the man was initially admitted to Port Pirie Hospital but was later airlifted to the Royal Adelaide Hospital for treatment in the burns unit.
His condition was considered serious but his injuries were not believed to be life threatening. A second worker was treated at the scene for minor injuries
|
Posted by Anonymous at 2:48 PM, 8/3/2007 |
Link |
|
WorkCover official accused over child pornography
WorkCover official accused over child pornography
October 31 2002
By Wayne Miller
A former Victorian WorkCover employee has accused the organisation of failing to act against an official accused of using his work computer to view child pornography.
The former employee said he discovered the sites when the laptop computer was handed in to him for an upgrade in 2000. He said he discovered the child pornography when he checked the computer's Internet site history and informed his superior.
The officer is still working at WorkCover. He declined to comment last night. The former employee, who declined to be named, described the material on the sites as "graphic and disgusting".
"It wasn't just teenagers, it was young boys," he said.
"It was definitely child pornography."
He said that he was told several weeks after the discovery that the matter would not be pursued.
"I was told that... that it could cause problems for WorkCover and the government," he said.
"I'm actually surprised he's still working there.
"One of the reasons I left was because I was so disappointed about nothing happening about it."
The former employee said he viewed the sites with other WorkCover employees and was later told by his superior not to approach the officer.
"I just assumed that it came from someone up top," he said.
A Victorian WorkCover Authority spokesman said last night: "The organisation has no records confirming the alleged incident.
"The managers in charge of both the affected divisions implicated in these allegations have subsequently left the organisation."
He said WorkCover would investigate "any evidence that is presented".
"The organisation refutes categorically that the CEO, board or minister were aware of these allegations in any form."
A spokesman for WorkCover Minister Bob Cameron said: "If these allegations are substantiated the government expects swift and appropriate action to be taken, with that action likely to involve the employer and the courts."
Several other WorkCover employees have complained to The Age about the lack of action.
"I'm a father and for this sort of thing to go on and be unpunished is an absolute disgrace," one said.
Australians Against Child Abuse chief executive officer Joe Tucci said all government organisations should set standards to ensure children were not exploited by the production and dissemination of child pornography.
"The police should be consulted to establish whether any crimes have been committed. I don't think we should have procedures that minimise the seriousness of it," he said.
A Victoria Police spokesman said it was not a criminal offence to view child pornography sites, but that it was illegal to download or print material. |
Posted by Surfer at 5:21 PM, 26/5/2007 |
Link |
|
Published in Australian Doctor magazine 2001
The New South Wales government is the latest body attempting to tackle the thorny issue of Worker’s Compensation payouts. I can’t imagine a insurance scheme for injured workers anywhere in the world at the moment that wouldn’t be experiencing a large growth in liabilities. There are a few obvious factors which explain why the cost of Worker’s Compensation is going through the roof. The most glaring is that the legal profession sees itself as a major growth industry, with the aim of enticing as many compensation claims as possible. It is frightening when you hear cases of people who didn’t appear to realise that they had been injured at work until they heard an advertisement on the radio informing them of this fact. As doctors, perhaps we should be thankful of this, because Workers Compensation insurers have even deeper pockets than Medical Indemnity insurers, and if vexatious employees can blame their employers for their predicaments, they are less likely to blame their doctors.
Another factor behind the rise in claims is that employer-employee relationships (unfortunately just like husband-wife and doctor-patient relationships) are much less likely to be long-term. Workers know that their companies will sack them at the drop of a hat when they are no longer making any money, so in turn there is little loyalty to employers.
The medical profession and in particular medical technology is also a major reason why there are so many claims from injured workers. Medical imaging – particularly MRI scans – are so good at finding pathology, that any one who is unhappy in their job can usually find a medical justification for no longer wanting to do it. Although diagnoses such as “stress” and “repetitive strain injury” are no longer in favour, they are generally redundant, because if you investigate thoroughly enough then an anatomical abnormality can usually be found. If you took a random sample of middle-aged workers, and performed screening lumbar spine MRI scans, the majority would have reportable abnormalities. The dilemma for doctors is that, even knowing this fact, if a 50 year old presents to your surgery, claiming to have hurt his back at work, and there is a disc prolapse on the MRI scan, it is almost impossible to avoid writing a certificate to say that his work was responsible for this injury. This is because it is quite likely that work was somewhat of a contributing factor, and the patient deserves the benefit of any doubt. Even though the pathology may represent routine degenerative changes, a significant proportion of this degeneration probably occurred during the 40 hours of the week that the patient was at work.
Degenerative changes on imaging are not confined to the older population. The Miami Heat basketball team in the NBA has performed an interesting internal study by ordering pre-season MRI knee scans on every player they have ever signed. Only 20% of the scans are reported as normal, with the vast majority of players having a combination of articular cartilage damage, patellar tendon degeneration and other abnormalities. Most of the players with these abnormal scans still play, of course, because even though they may suffer from occasional knee pain, they want to be on court earning their massive salaries. Just as most of the population with mild disc prolapses and rotator cuff partial tears are still out there in the workforce. Until the day comes when they decide that they don’t want to work with pain any more.
The current proposal for changes to the NSW Workcover scheme would take away rights of injured workers to sue their employers above the legislated rates of compensation. The lawyers are quite correct in pointing out that if an employee has a leg cut off by a machine at work because the employer didn’t maintain the machine properly, then he or she should still have the right to sue. What the system cannot afford is employees suing their employers because they have back pain, because every second person has back pain.
The major reform needed by Worker’s Compensation systems is a defined grading system for cause and effect. At its most basic level, this could divide claims for which Workcover accepts responsibility into two categories. A worker who has an appendage cut off or an eye blow out by a flying piece of metal has unequivocally been injured (totally) by the working environment. This could become a category A injury. A worker with degenerative joint disease may have sustained some of this damage at work. A previous sporting injury or the normal ageing process may also be partially responsible. This could become a category B injury. My impression of Workcover claims that pass through my office is that the vast majority of claims would be in category B. Category B injured workers should retain the right the receive payments for not being able to work due to injury, but they should not be able to sue their workplace. Category A injured workers could maintain all of their existing rights, as they are not the ones responsible for the current blowout in costs.
Employers are not in an easy position. Another example of how they are being squeezed at both ends is the current furore about age discrimination. If you are an employer with a labouring workforce trying to prevent workplace injuries (in the current climate of claims) then the best measure to do this would be to screen prospective employees before you gave them a job. This would be tantamount to age discrimination, because older people are much more likely to have a past history of injuries, and also much more likely to have abnormalities on MRI scans. If I was an employer of manual workers, I would do everything in my power to avoid employing people with a past history of injury and/or with pre-existing degenerative changes on imaging. That is, until someone age 50 sued me for “age discrimination” because they weren’t successful in their job application. I’m glad I am not an employer of manual workers. The real employers of manual workers probably hate doctors like me. I write certificates which effectively say that they are responsible for the pain suffered by their employees. |
Posted by John Orchard at 7:00 PM, 26/5/2007 |
Link |
|
VECCHI and Workcover: Let's have some ideas
The Victorian Employers Chamber of Commerce and Industry and its chief executive, Nicole Feely, stand condemned for the heartlessness of their approach to injured workers in this State.
The question must be asked: why does VECCI want benefits paid to massively injured people to be the worst in Australia? This will be the result if common law rights for injured workers are reintroduced without adequate premiums being paid by employers.
VECCI admits that Victoria will continue to be competitive, because the expected new premium will be around 35 per cent less than in New South Wales. Even if premiums rose to a maximum of 2.18 per cent, this would still be well below the New South Wales figure of 2.77 per cent.
The respected economist John Marsden in his study found that Australian workers pay almost two-thirds of the cost to the economy of workplace accidents. Employers, on the other hand, pay less than 10 per cent. Correspondingly, there is no evidence to demonstrate that the level of compensation insurance affects real ages and may lead to reduced employment.
Nicole Feely and VECCI must concede that there is an issue of justice and morality here. Many of us are employees and are in danger of suffering crippling injury at work. Why else would WorkCover spend so many millions on its television and billboard advertising showing harrowing accidents?
In an article in The Age (27/3), Ms Feely makes the astonishing assertion (especially for a former lawyer) that common law "is a lottery by nature." More than 90 per cent of seriously injured workers who undertake a common law action succeed. So what makes it a lottery?
The fact that a high proportion of those who do take action succeed is a cause for neither concern nor worry. In most cases workers obtain expert advice about whether to bring a common law action. Hence the rate of success in the actions that are brought.
Nicole Feely talks about encouraging the state Government to consider progressive improvements to workers compensation entitlements. Sadly, she offers no detail about what this would mean. Could this be because VECCI is either bereft of ideas or more concerned to keep premiums artificially low than to provide decent compensation? VECCI would be better representing its wide range of members, including lawyers, by showing some decency and leadership. |
Posted by John Orchard at 7:03 PM, 26/5/2007 |
Link |
|
Myths of whistleblowing
Norma, an accountant, noticed that funds in the company president's special account were being diverted to an overseas account. She reported this to the company's auditor.
Suddenly her access to accounts was removed, malicious rumours about her personal life and dishonesty were spread, co-workers avoided her and she was demoted. She got off easy!
Norma noticed that some sympathisers referred to her as a whistleblower. She hadn't thought of herself that way before. Norma was entering the realm of myths about whistleblowing.
MYTH 1: whistleblowing is dobbing. Dobbing, a derogatory term, usually means informing on a mate. Whistleblowing means speaking out in the public interest.
When Norma unwittingly stumbles across the boss's corrupt operations, is that dobbing? When residents participate in Neighbourhood Watch and inform police of break-ins, is that dobbing? When a witness reports a brutal assault, is that dobbing?
Dobbing simply is the wrong way to describe most cases of whistleblowing.
MYTH 2: whistleblowers always set out to be whistleblowers. Actually, a great number of them, like Norma, were just doing their jobs. They were conscientious and productive workers. They believed in the goals of the organisation.
When they saw evidence of corruption or dangers to the public, they reported it fully expecting the problem to be dealt with. They are incredibly shocked when they are attacked as a result.
Many of them still don't adopt the label of whistleblower, preferring to think of themselves as workers who were just doing their jobs.
MYTH 3: whistleblowers are malingerers, attention-seekers, radicals or ratbags. Actually, most whistleblowers are serious and hard-working. Many are conservative, socially and politically.
The only attention they usually desire is on the problem they are concerned about, not themselves. For their efforts, most of them come under sustained attack and suffer enormously, often spending large amounts of money defending themselves, experiencing serious health problems and break up of relationships.
MYTH 4: the best way to protect whistleblowers is through whistleblower legislation. Actually, it doesn't work. There are whistleblower laws on the books in several Australian states, yet there is not a single whistleblower known to have benefited from any of them.
South Australia's 1993 whistleblower act looks excellent on paper, but has never helped any whistleblower. But, ironically, the threat of using the act was invoked to shut down a whistleblower web site exposing abuses by WorkCover.
The United States has had whistleblower laws for much longer, with the same experience. The Office of the Special Counsel (OSC) was set up in 1978 as a formal channel for whistleblower disclosures. Congress has repeatedly amended the laws because they have not been working, being undermined by OSC administrators.
Tom Devine of the Government Accountability Project and author of the authoritative The Whistleblower's Survival Guide, concludes that "flaws in the system mean that an OSC whistleblowing disclosure is likely to be unproductive or even counterproductive." In other words, the OSC on balance has been useless or harmful.
Some critics have argued that whistleblower laws are passed by governments to give the appearance of action without the substance. That's certainly what seems to have happened.
MYTH 5: official channels are available to deal with problems reported by whistleblowers. Official channels include internal grievance procedures, appeal bodies, ombudsmen, courts, human rights commissions, antidiscrimination bodies, anticorruption commissions and parliaments.
Whistleblower researcher Dr William De Maria surveyed hundreds of whistleblowers. He found that official channels helped in less than one out of ten cases. In many instances, official channels were actually harmful.
Whistleblowers Australia has contacted dozens of whistleblowers who have made complaints to the NSW Independent Commission Against Corruption, and has found only one who was helped at all.
Dr Jean Lennane, president of Whistleblowers Australia, has concluded it would be better to abolish ICAC. She is not the only one to reach this surprising conclusion.
Dr Lennane also thinks that any anticorruption body should have a finite life of about three years, since it can't be expected to be any use after that even if it was before.
Many workers in appeal bodies do their best. The problems arise due to serious overload, cumbersome bureaucratic procedures, limited mandate, government cut-backs (especially of agencies that seriously challenge corruption), and accommodation with the system.
If governments were serious about fostering public interest disclosures, they would get rid of laws gagging public servants, reform defamation law to reduce its role in chilling free speech, and provide arms-length funding to whistleblower support groups.
Many of those with lots of experience talking to whistleblowers have concluded that there are only two things that reliably help. The first is talking to other whistleblowers. The other is publicity, especially media coverage.
It should not be a surprise, then, that most whistleblower legislation seeks to discourage people from going to the media.
Whistleblowers speak out in a way that challenges vested interests. Whistleblowing is threatening to both the vested interests and to many of those who are complicit or afraid of the consequences of speaking out.
Hence it isn't surprising that myths about whistleblowing abound. It is just too threatening to recognise what is going on. |
Posted by Brian Martin at 7:07 PM, 26/5/2007 |
Link |
|
Workcover and Whisltleblowers
Workcover has an exceptional history in relation to Whistleblowers. Problem is that the Whistleblowers act does not really protect whistelblowers in this state.
One problem is that when you complain against workcovers actions they target you. They call it claims management.
Others call it harrassment. Workcover should be dismantled it has too many powers under the same roof.
Prosecution, rehabilitations, renumeration, etc etc.
It has the power to control any injured worker like a puppet ona string.
|
Posted by Whistleblower at 8:57 PM, 29/5/2007 |
Link |
|
WorkCover 'went soft' on Mullett probe
WorkCover 'went soft' on Mullett probe
WorkCover turned a blind eye to bullying claims against Victorian Police Association secretary Paul Mullett because the state government ordered the authority to "go soft", the opposition says.
Opposition police spokesman Andrew McIntosh says the state government must explain why the WorkCover Authority, in charge of workplace safety in the state, held just two meetings with the police union boss and failed to respond to complainants.
ADVERTISEMENT
Senior Sergeant Mullet was first accused of bullying in 2005 but was cleared by an internal inquiry.
A Victoria Police inquiry last year found a culture of bullying existed within the association.
Chief Commissioner Christine Nixon referred the matter to WorkCover, which made no adverse findings.
Victoria's police ombudsman is now preparing a report on WorkCover's handling of the bullying allegations.
Details of the investigation were reported on Wednesday by ABC Radio, which obtained them under Freedom of Information.
Opposition police spokesman Andrew McIntosh said the WorkCover investigation should be seen in light of the government's secret promises to the Police Association before last year's election.
If the reported details of the investigation were true, the government needed to explain "how such serious allegations can be treated with such disdain by the WorkCover Authority", he said.
"It would appear to be that the Workcover Authority has gone soft on the police union," Mr McIntosh said.
"This is connected with that secret deal (Premier) Steve Bracks and Paul Mullet entered into last year. It's also connected with the state election."
The government denies it entered a secret deal with the association and says a signed "record of commitments" simply outlined Labor's policy in the lead-up to the election.
Asked whether investigators had been able to speak to the alleged bullying victims to properly investigate their complaints, Mr McIntosh said they had.
"As I understand it, the WorkCover Authority had access to those complainants, yes," he said.
Mr McIntosh said he did not believe WorkCover was simply inept.
Sen Sgt Mullett told ABC Radio Liberal Party claims that the bullying investigation was influenced by talks he had with the government were "naive".
Further comment was being sought from Sen Sgt Mullett.
A WorkCover spokesman said he was unable to comment on anything relating to the police ombudsman's inquiry.
Comment was being sought from the government on Mr McIntosh's claims. |
Posted by D.S. at 8:58 PM, 29/5/2007 |
Link |
|
Today’s editorial from the AUSTRALIAN may give a clue:
“In the past decade, the state’s public-sector wages have increased by 49.2per cent, versus a rise of “35.9 per cent in the private sector over the same period, yet public services are as bad as ever. This has aided a perverse money cycle where Labor has rewarded public-sector unions that have in turn helped fund a $15 million negative election campaign that has smashed Mr Debnam’s hopes.”
It’s a sensible theory in my opinion, and I’m sticking to it because its sounds about right to me.
Just recently Mr Della Bosca has all but admitted that the Worker Compensation system was in crisis and drastic measures needed to be taken back in 2000, to reduce costs and to improve the financial performance of the system. Premiums had become too high and payouts too costly.
NSW: Workers compensation premiums set to fall again Wednesday, 21 March, 2007
“Mr Della Bosca said recently the one-off payout and premium cuts were possible because of the continuing improvement in WorkCover’s finances from a $3.2 billion deficit to a $416 million surplus. “The scheme returned to financial stability and it can now be said to have completely returned to financial health,” Mr Della Bosca told reporters. “It means we can lower premiums and increase benefits and increase services to workers now we’ve fixed the scheme.”
The Government have argued that lawyers were the one’s who were rorting the system, now it has become apparent WorkCover and insurers in particular have been the BIG WINNERS. But at no time does it appear that injured workers have been given the consideration they need. That was supposed to fall to UNIONS to defend, but they dropped the ball and probably for good reason.
Yes, unions are now taking a stand but that is 5 years after the fact, which is not good enough in my opinion. |
Posted by John McPhilbin of NSW at 3:56 PM, 3/6/2007 |
Link |
|
Hip Hip Hooray..
WORKCOVER CORPORATION OF SOUTH AUSTRALIA v TRASK [2007] SASC 339 (20 September 2007)
Last Updated: 20 September 2007
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated.
WORKCOVER CORPORATION OF SOUTH AUSTRALIA v TRASK
[2007] SASC 339
Judgment of The Honourable Justice David
20 September 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST ACQUITTAL
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - PRIMA FACIE CASE OR CASE TO ANSWER - PRACTICE AND PROCEDURE
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - BURDEN OF PROOF
Magistrates appeal – prosecution appeal - criminal law - the respondent was charged with 85 dishonesty offences contrary to the Workers Rehabilitation and Compensation Act 1986 (SA) and the Criminal Law Consolidation Act 1935 (SA) – at the close of the prosecution case the defence submitted that there was no case to answer – the magistrate found that there was a case to answer but dismissed the complaint pursuant to a Prasad direction – consideration of whether prosecution had proved its case beyond a reasonable doubt – whether defendant must elect not to call evidence before Prasad direction can be considered – whether delay relevant to Prasad direction.
Held: Appeal dismissed – the prosecution evidence failed to prove the charges beyond a reasonable doubt – a defendant is not required to elect not to call evidence before a Prasad direction can be made – delay is not relevant to consideration of a Prasad direction in the criminal jurisdiction.
Criminal Law Consolidation Act 1935 (SA) s 270A; Magistrates Court Act 1991 (SA) s 42; Workers Rehabilitation and Compensation Act 1986 (SA) s 120(1), referred to.
Peters v R [1998] HCA 7; (1998) 192 CLR 493; R v Prasad (1979) 23 SASR 161; Tazroo v Police [2002] SASC 155; Tepper v Di Francesco (1984) 38 SASR 256, applied.
Muller v Ebbw Vale Steel Iron & Coal Co Ltd [1936] 2 All ER 1363, not followed.
BCW (2006) 160 A Crim R 278; The Queen v Bilick and Starke (1984) 36 SASR 321; Dean v The Queen (1995) 65 SASR 234; R v Pahuja (1987) 49 SASR 191, discussed.
WORKCOVER CORPORATION OF SOUTH AUSTRALIA v TRASK
[2007] SASC 339
Magistrates Appeal: Civil
DAVID J.
Introduction
1 This is an appeal by WorkCover Corporation of South Australia ("WorkCover") against a magistrate’s dismissal of a complaint.
2 The respondent was charged with:
• 32 counts of dishonestly making a statement about a claim under the Workers Rehabilitation and Compensation Act 1986 (SA) ("the Act") knowing that the statement was false or misleading, contrary to s 120(1)(c) of the Act;
• 51 counts of dishonestly obtaining a payment under the Act, namely 45 weekly payments and six payments for home help, contrary to s 120(1)(a) of the Act; and
• two counts of attempting to dishonestly obtain a payment under the Act, namely a lump sum payment under s 43 of the Act, contrary to s 120(1)(a) of the Act and s 270A of the Criminal Law Consolidation Act 1935 (SA).
3 After the close of the prosecution case, the respondent made a submission to the magistrate that there was no case to answer. The magistrate found that there was a case to answer, but that a Prasad[1] ruling was appropriate. The magistrate then dismissed the complaint.
4 There are 14 grounds of appeal, but in essence, the appeal is against the magistrate’s assessment of the evidence and the decision to dismiss the complaint without requiring the respondent to elect not to call evidence.
Facts
5 On 2 July 1996 the respondent commenced employment as a cleaner at Le Cavalier Motel in Mount Gambier. After four days she developed a dull aching pain in her right arm and shoulder, and some similar, but less severe, symptoms in her left arm. She continued to work, but her symptoms worsened and she started to experience lower-back pain, increased pain in the right arm and severe, continuous headaches. The respondent reported her injuries to her employer and, on 20 July 1996, her employment was terminated.
6 On 28 July 1996 the respondent consulted a general practitioner, who diagnosed right lateral epicondylitis (commonly known as tennis elbow). The respondent submitted a claim for compensation to the appellant. In November 1996 the claim was accepted, on the basis that the respondent was suffering from epicondylitis. The respondent thereafter received weekly compensation payments. Apart from a short period of employment in August 1999, the respondent has not worked since that time.
7 The respondent’s symptoms spread and she was later diagnosed as suffering fibromyalgia, which is a widespread, chronic, musculoskeletal pain syndrome. In December 1998 a medical report was provided to the appellant which stated that if the respondent was still unable to work, this inability was no longer due to her epicondylitis. The appellant therefore advised the respondent that it intended to cease her compensation payments. As a result, the respondent sought a judicial determination that she was incapacitated for work as a result of a work related injury.
8 In October 2002, Judge Cawthorne, sitting as the Deputy President of the Workers Compensation Tribunal of South Australia, made the following remarks in the course of his determination:
In my respectful view in light of all of the evidence the probabilities are that a number of factors played a role in the development of the applicant’s fibromyalgia. In particular, in my view, it is hard to ignore as a factor the primary injury and the symptoms therefrom which have continued to trouble the applicant at all material times and have caused her frustration and worry including concerns about her ability to cope when she learned she was about to have another baby. Moreover, the evidence of Dr Cullum suggests the starting point of the relentless deterioration in the applicant’s condition of which he spoke was the occurrence of the primary injury.
As to the other factors I think it likely that the many treatments and investigations involved in attempting to alleviate the primary injury, depression, life circumstances and complications with her pregnancy, all played a part, inter alia, in the development of the applicant’s condition.
In the result, on a weighing of all relevant considerations, I am satisfied that the primary injury features in the fibromyalgia disability such that it can be truly said that "the employment was significant enough still to be able to say that the ... [applicant’s fibromyalgia] ... ‘arises from’ the applicant’s employment with the employer;" Sherrif [sic] (supra). [WorkCover Corporation v Sheriff (Unreported, Supreme Court of South Australia, Full Court, Lander, Bollen and Nyland JJ, 1 October 1996) 12-13 (Lander J).]
As I see it the above finding leads inevitably to the conclusion that the applicant is and has been at all material times totally incapacitated for work as a result of her fibromyalgia condition and thus [WorkCover] is not entitled to discontinue weekly payments being made to the worker ...
9 WorkCover did not appeal this decision. However, in January 2003 it commenced surveillance of the respondent. This surveillance continued intermittently until August 2004. As a result of this surveillance, the appellant commenced these criminal proceedings in the Magistrates Court in March 2005.
10 The trial commenced on 20 November 2006. After the prosecution had presented its case, the magistrate ruled that the prosecution should be stayed until it had called two further witnesses. Those two witnesses were medical practitioners who had previously examined the respondent, namely Dr Richards and Dr Woodruff. After a delay of some months, the prosecution called those two witnesses and then closed its case.
11 At the close of the prosecution case, the respondent made a submission that there was no case to answer. The respondent did not elect not to call evidence. The magistrate did not make any ruling about whether or not there was a case to answer on counts 1-32, but found that there was a case to answer with respect to counts 33-85. The magistrate then proceeded to consider whether or not it was appropriate to make a Prasad ruling and dismiss any or all of the charges on the complaint.
12 The magistrate found that this was the appropriate course of action and provided the following reasons:
For a number of reasons, it seems to me that a Prasad ruling and disposition is appropriate in this case.
These include the considerable delays that have taken place from institution of prosecution in early 2005 to this point. (Part of that delay is caused by the prosecution’s initial and wrongful refusal to call two witnesses who should have been called).
The length of the trial is another factor. The trial has proceeded over thirteen days.
The next factor is the cost should the trial proceed further (and perhaps the expense of the trial to date).
The defendant resides in Warnambool in Victoria and should the matter proceed further, she would be inconvenienced at the least by having to travel here and remain here for the duration of the rest of the trial. It is likely that any witnesses likely to be required by the defendant will be obliged to come from Victoria. Five more days have been allocated to continue the trial (from 25/6/07 to 29/6/07).
In order to convict the defendant, the court would have to rely upon one part of the medical evidence, along with the non-medical evidence, and in so doing, to reject the other medical evidence. In particular, it would be required to reject the evidence of Dr Richards, who saw the defendant more than all the other practitioners put together. It would also have to reject the evidence of Dr Woodruffe [sic].
In order to do so, the court would have to perceive some failing in their observations or reasoning or some lesser qualification than possessed by the other medical practitioners. There is no way that any court could do that in a case which requires satisfaction beyond reasonable doubt. Dr Richards was extremely experienced and the only witness currently working in the field of pain management. Dr Woodruffe [sic] was a Fellow of the Royal Australian College of Physicians and rheumatology was his specialty. Their opinions cannot be lightly discarded. There would have to be a compelling reason to discard such evidence. No such reasons emerged.
It is true that there was a variation in the way the defendant sometimes presented herself during the relevant period, and the depiction of her in the video at times. But the variation was one to be expected according to those two doctors. It is not, for example, as if the video depicts the defendant doing anything strenuous. She is merely a person moving slowly.
All this must be viewed against the background of the defendant’s co-operation with all WorkCover’s demands upon her. She has willingly submitted herself to many thorough and minute examinations. She has heeded all the advice given to her by medical practitioners over the eleven years. She has undergone all medical procedures and operations advised by practitioners who were not called in this case, procedures and operations which have been ineffective. It is very difficult to conclude anything other than that she is genuine.
In my view on the evidence as it stands (and is likely to remain), no court could be satisfied beyond reasonable doubt as to the guilt of the defendant on any of the charges. (Emphasis in original)
13 The magistrate therefore found the defendant not guilty and dismissed the complaint. WorkCover appeals against that decision.
Arguments on Appeal
14 At the outset it is important to remember that this Court is reluctant to interfere with a magistrate’s decision to dismiss a complaint where the charge requires proof beyond a reasonable doubt. The reasons for this were recently set out in BCW[2] where White J said:
There are two considerations which cause this Court to adopt that approach. The first is that a finding of reasonable doubt often rests on the magistrate’s appraisal of the witnesses. The second is that a prosecution appeal places the respondent in a situation of double jeopardy. Where there is an error of law, the court may be more willing to interfere. (Footnotes omitted)[3]
15 An appeal from a magistrate’s decision under s 42 of the Magistrates Court Act 1991 (SA) is by way of re-hearing. In Tazroo v Police[4] Lander J said:
Because it is a re-hearing and because it is an appeal from the Magistrates Court the Court has an obligation to re-hear the case in the sense that it must reconsider all of the evidence before the magistrate together with such other evidence as it might admit.
It is the duty of this Court to make up its own mind, after giving due weight to the magistrate’s advantage in seeing and hearing the witnesses, and of course after giving weight to any findings on credibility which depend largely or on [sic] part on demeanour.[5]
I am therefore required to review the evidence which was presented at trial and determine whether there is any reason to interfere with the magistrate’s findings.
16 Before I address the appellant’s grounds of appeal, it is important to give some consideration to the offences with which the respondent was charged. Counts 1-32 alleged dishonestly making statements about a claim, knowing the statements were false or misleading (contrary to s 120(1)(c) of the Act). The statements were allegedly made by the respondent to various medical specialists and therapists about her physical (in)capabilities, such as needing to use crutches and a wheelchair, being unable to perform housework, only being able to walk for 10 minutes, being unable to lift items of weight, etc. In order for the respondent to have been convicted, the prosecution would have had to prove beyond reasonable doubt that the respondent made the statements detailed in each charge, that the statements were false or misleading (ie that the respondent’s physical capabilities were greater than her statements indicated), and that the respondent knew that the statements were false or misleading. As the magistrate correctly identified, there would be no need to also prove dishonesty as a separate element, proof that the respondent knowingly made a false or misleading statement would be sufficient to show dishonesty.[6] Counts 33-83 related to obtaining payments by dishonest means (contrary to s 120(1)(a) of the Act). These counts related to 45 weekly payments and six payments for home help. Counts 84-85 alleged attempting to obtain a payment by dishonest means (contrary to s 120(1)(a) of the Act and s 270A of the Criminal Law Consolidation Act). These counts related to lump sum payments to be assessed under s 43 of the Act. There does not appear to have been any dispute that the respondent obtained the payments, or attempted to obtain the payments, alleged in counts 33-85. However, the basis for the dishonesty alleged in those offences was the dishonest conduct alleged in counts 1-32. In order to prove counts 33-85, the prosecution therefore needed to prove at the very least counts 1-32.
17 The appellant appeals against the magistrate’s ruling on the following grounds:
1. The Learned Magistrate failed to properly assess the weight to place on the evidence of the medical witnesses, who supported the contentions of the complainant as to the video evidence;
1.1 Dr Cullum (occupational physician);
1.2 Dr Champion (rheumatologist);
1.3 Dr Muirden (rheumatologist);
1.4 Dr Ormandy (general surgeon);
1.5 Dr Meegan (occupational physician);
1.6 Dr Kostos (rheumatologist);
1.7 Dr Duke (psychiatrist).
2. The Learned Magistrate erred in failing to have sufficient regard to the fact that the above medical specialists did not resile from their opinions during cross-examination, and were not discredited during cross-examination.
3. The Learned Magistrate erred in failing to have sufficient regard to the evidence of Dr Kostos, an eminent rheumatologist, apparently on the ground that Dr Kostos gave an opinion on medical issues and the video evidence, without having examined the defendant.
4. The Learned Magistrate failed to place sufficient weight on the evidence and submissions of the complainant to the effect that when the defendant was near medical rooms or at an attendance with a rehabilitation consultant, her displayed disabilities were consistently worse than when she was covertly videoed in circumstances where she would not expect to have been observed.
5. The Learned Magistrate failed to have sufficient regard to the extreme nature of the disability displayed by the defendant, including presenting to medical examinations in a wheelchair.
6. The Learned Magistrate erred in failing to have regard to the consistency of the description of the symptoms to doctors and rehabilitation consultants, and the evidence that the defendant failed to report significant variations in her disabilities and her practical restrictions in movement to most doctors.
7. The Learned Magistrate failed to have sufficient regard to the lack of a medical explanation for the disabilities displayed by the defendant.
8. The Learned Magistrate erred in failing to require the defendant to elect not to call evidence before giving consideration to dismissing the complaint.
9. The Learned Magistrate erred in finding at page 13.5 of his reasons,
"But it is impossible to say on a mere viewing of the video whether the defendant has any capacity for employment, and if she does, what that capacity might be".
Such statement was inconsistent with the weight of the medical evidence, and also was not the correct test for the purposes of any of the charges.
10. The Learned Magistrate erred in finding at page 22.0 of his reasons,
"The video shows no more than the defendant doing not much in a pretty slow fashion".
Such finding failed to address the point of the video, namely the inconsistency between the movements depicted in the video away from medical rooms on the one hand, and the presentation to doctors and rehabilitation consultants on the other hand.
11. The Learned Magistrate erred in stating at page 22.9 of his reasons
"... not one medical expert in possession of all the facts expressed the opinion that the defendant was malingering, fraudulent or dishonest".
Notwithstanding the Learned Magistrate’s qualification following such statement, the statement indicates an erroneous view of the boundaries of admissible evidence or alternatively required evidence for a conviction.
12. The Learned Magistrate erred in referring at page 29.0 of his reasons to "considerable delays ... from institution of prosecution in early 2005" without seeking an explanation from counsel for such delays, or alternatively, without finding that the delays resulted almost wholly from actions by or on behalf of the defendant.
13. The Learned Magistrate erred in finding at pages 29 to 30 (in effect) that in order to convict the defendant, the court would have to rely upon part of the medical evidence and reject the other medical evidence (Dr Richards and Dr Woodruff), and that there is no way that a court could do that in a case which requires satisfaction beyond reasonable doubt. The Learned Magistrate should have decided the issues taking account of the medical evidence, and also the extensive factual evidence from numerous witnesses (which evidence was largely not available to the doctors), and should have found that it could convict the defendant notwithstanding the opinions of the two medical witnesses, Dr Woodruff and Dr Richards.
14. The Learned Magistrate erred in failing to have sufficient regard to the possibility that the defendant dishonestly exaggerated her symptoms to some doctors, but not necessarily all doctors.
18 Grounds 1, 2, 4-7, 9-11, and 14 all relate to the magistrate’s assessment of the evidence. I will therefore deal with these grounds together. In essence, the appellant argues that, on a proper construction of the evidence, the prosecution proved its case beyond a reasonable doubt.
19 The prosecution led two main categories of evidence. The first was from a number of medical specialists who had examined the respondent. The second was evidence of surveillance of the respondent, primarily in the form of video footage, but also from surveillance officers. It was intended that this evidence would show that the respondent had
• stated that she was physically incapable of performing everyday tasks, and
• presented as physically incapable when attending medical appointments
in order to be diagnosed as totally incapacitated for work, when in fact she was
• capable of performing everyday tasks, and
• more physically able than she pretended to be.
20 The magistrate found that there was evidence to support the prosecution’s contention. In particular, the magistrate found that:
• Dr Champion was of the opinion that the respondent had no physical complaint and was not disabled from work;
• Dr Cullum could not explain the discrepancy between the way the respondent had presented to him and the way she presented in the video footage;
• Dr Meegan thought there was a large discrepancy between the way the respondent had presented at the time of examination and her presentation in the video footage;
• Dr Ormondy thought that the respondent may be faking her physical complaints; and
• Dr Muirden was of the opinion that the respondent was capable of performing light work duties.
The magistrate also made a number of findings with respect to the video footage which were supportive of the prosecution case. These include the following:
Video footage during the relevant period shows, contrary to some of the claims she has made, that she can walk freely albeit slowly, can and does shop, can and does squat and can stand for longer periods.
...
Mr Schroeder for the complainant correctly pointed out that there were times when more video might have revealed more capacity on the part of the defendant than she claimed to possess. For example, on one occasion there was some video obtained of her perambulating in a shopping aisle. More video might have been obtained then but for the obvious difficulties of video without detection in such a situation. No doubt there were those occasions when video would have been appropriate, but difficult to achieve.
...
What the video does depict can be summarised as follows.
On occasions she would drive a manual van motor vehicle, get into it unaided and walk unaided but slowly. At times she bends and squats. On other occasions she used a single walking stick when walking. She sometimes used a pair of elbow crutches. She sometimes was pushed by somebody else while in a wheelchair. There were occasions when she carried objects eg rubbish bin, shopping bags and a luggage bag while walking unaided.
One must concede that there is a considerable difference between eg the occasions when the defendant is seen walking freely, albeit slowly, and those occasions when she is being wheeled in a wheelchair.
21 However, there was also evidence which created doubt about whether the respondent had knowingly made false or misleading statements. The fact that 18 months of surveillance produced only 22 minutes of video footage of the respondent during which she performed insubstantial activities, is perhaps in itself telling of her limited physical capability. As the magistrate pointed out:
It tends to establish that the defendant is a very inactive person. She rarely emerges from her house.
22 Evidence suggesting that the respondent’s symptoms fluctuate also created doubt about her guilt, because this evidence allowed an inference to be drawn that the activities captured on video occurred on days where there was an easing of her symptoms, rather than being evidence of sustained physical capability. Dr Meegan said that the respondent advised that the severity of her pain fluctuated, from 4/10 at best to 10/10 at worst. Dr Ormondy said that the respondent’s presentation in the video footage was the same as when he examined her in 2000, but better than when he examined her in 2004. Dr Richards said that the respondent’s pain fluctuates and she is unable to work. He maintained this opinion despite viewing the video footage. Dr Woodruff gave evidence that symptom variability is consistent with a diagnosis of fibromyalgia.
23 Having reviewed all of the evidence, I can see no reason to depart from the magistrate’s findings of fact.
24 The burden of proof in this case is the criminal onus. While there is evidence which suggests that at times the respondent may be more physically capable than she stated, there is a real doubt that she knowingly made false statements about her capabilities. This is because there is little evidence to suggest that the respondent is more physically able than indicated in her statements. Indeed, the fact that over an 18 month period only 22 minutes of video footage was obtained of the respondent performing physical activities suggests that she may have been as physically incapable as she stated. In addition, the fact that there is evidence which suggests that she may sometimes be more physically capable than she stated does not indicate that this is the case most of the time, or even often. It is therefore a possibility that the respondent described her symptoms to doctors at their worst and was unaware that by failing to indicate that her symptom severity varied she was being misleading. This is supported by Dr Meegan’s evidence that the respondent advised him that her symptoms fluctuated. There was no evidence to suggest that other medical specialists had questioned the variability of her symptoms and been misled. The evidence is therefore incapable of proving beyond a reasonable doubt that, at the time the statements were made, they were false or misleading and the respondent knew this. There was no error in the magistrate’s consideration of the evidence and this ground of appeal must therefore fail.
25 Ground three of the appeal argues that the magistrate should have given greater weight to the evidence of Dr Kostos. Dr Kostos is a rheumatologist. He had not examined the respondent, but was called to give evidence about fibromyalgia generally and provide his opinion about the respondent’s presentation in the video footage. The magistrate’s ruling suggests that he gave little or no weight to Dr Kostos’ evidence because he had not examined the respondent.
26 Dr Kostos’ general evidence about fibromyalgia was inconsistent. He initially gave evidence that fibromyalgia sufferers can experience fluctuating pain levels, but not fluctuating function. He later said that sufferers can experience fluctuating function. His evidence on this issue is therefore unhelpful. Dr Kostos’ evidence about the video footage was that it showed variability in the respondent’s physical capabilities. This adds nothing to the evidence presented by the prosecution, as this was stated by a number of other witnesses who also viewed the footage and it can also be observed by simply viewing the footage. As such, there was no error in the magistrate failing to use Dr Kostos’ evidence to determine whether or not the prosecution had proved its case, and this ground must fail.
27 WorkCover also appeals against the magistrate’s failure to request that the defendant elect not to call evidence before he considered whether to dismiss the complaint (appeal ground eight). The magistrate found that there was a case to answer, but dismissed the complaint pursuant to a Prasad ruling. The question is therefore whether or not a defendant must elect not to call evidence before a magistrate can dismiss a complaint pursuant to a Prasad ruling.
28 In R v Prasad,[7] King CJ said:
It is, of course, open to the jury at any time after the close of the case for the prosecution to inform the judge that the evidence which they have heard is insufficient to justify a conviction and to bring in a verdict of not guilty without hearing more. It is within the discretion of the judge to inform the jury of this right, and if he decides to do so he usually tells them at the close of the case for the prosecution that they may do so then or at any later stage of the proceedings ... I have no doubt that a tribunal which is the judge of both law and fact may dismiss a charge at any time after the close of the case for the prosecution, notwithstanding that there is evidence upon which the defendant could lawfully be convicted, if that tribunal considers that the evidence is so lacking in weight and reliability that no reasonable tribunal could safely convict on it. This power is analogous to the power of the jury, as judges of the facts, to bring in a verdict of not guilty at any time after the close of the prosecution’s case. It is part of the tribunal’s function as judge of the facts.[8]
29 In Tepper v Di Francesco,[9] when considering whether a defendant needs to elect when making a Prasad submission, King CJ said:
A submission that there is no evidence to support the charge, or, put another way, that the evidence adduced is legally incapable of proving the charge, is, of course, a submission on a matter of law. It is a true submission that there is no case to answer. The decision to be made by the magistrate on such a submission is whether "on the assumption that all the evidence of primary fact considered at its strongest from the point of view of the case for the prosecution, is accurate, and on the further assumption that all inferences most favourable to the prosecution which are reasonably open, are drawn, is the evidence capable of producing in the mind of a reasonable person satisfaction, beyond reasonable doubt, of the guilt of the accused?" (The Queen v Bilick and Starke).[10] A defendant is not required to elect before making such a submission. A submission as to the weight of the evidence is of quite a different character. It is not a submission that the evidence is not in law capable of supporting a conviction. It is in reality an invitation to the magistrate as the tribunal of fact to say that he finds the evidence for the prosecution to be so unsatisfactory that, although it is legally capable of supporting a conviction, he is not prepared to accept it as possessing sufficient weight to justify proceeding further. He is invited to dismiss the charge without calling on the defence. The power to take that course is possessed by the magistrate as the decider of the facts, at any time after the close of the case for the prosecution. The Queen v Prasad;[11] The Queen v Bilick and Starke.[12] Although a magistrate probably has a discretion to entertain such a submission without requiring the defendant to elect ... it is good practice to require a defendant to elect before entertaining a submission on the facts.[13]
30 These authorities make it clear that a magistrate sitting alone, as the judge of both law and fact, has a discretion to dismiss a complaint at any stage after the close of the prosecution case. The reason for this discretion is that the magistrate is in the position of the jury, and the jury has the power to dismiss a complaint at any stage after the close of the prosecution case if it is of the opinion that the prosecution has failed to prove its case beyond a reasonable doubt. While King CJ suggested that it may be good practice for a magistrate to require an accused to elect before considering a Prasad submission, I can see no reason why this should be required in law.
31 Counsel for the appellant argued that if an accused is not required to elect not to give evidence, the discretion to dismiss a complaint pursuant to a Prasad submission should be limited to those situations where "the evidence is so lacking in weight and reliability that no reasonable tribunal could safely convict on it".[14] In support of this proposition the appellant referred the Court to Dean v The Queen[15] where, at the close of the prosecution case, the defence made a submission that there was no case to answer. The judge determined that there was a case to answer but gave a Prasad direction to the jury. The jury chose not to return a verdict at that stage. In obiter, Cox J said:
Before leaving this topic I should refer to the learned judge’s Prasad direction (R v Prasad (1979) 23 SASR 161). There was nothing wrong with the way his Honour gave it; the question is whether it should have been given at all. This Court has previously expressed its concern about too free a use of the Prasad direction to bring a trial to a stop: see R v Pahuja (1987) 49 SASR 191 at 201, 217-219 and 224. In the present case the learned judge found that there was a case for the appellant to answer. There was no suggestion of the police witnesses being patently unsatisfactory or of the appellant being put to a lengthy but inevitably successful defence. Practically everything turned on the appellant’s state of mind and that was a subject on which the jury was likely in the circumstances to be very interested in hearing from the appellant himself, as indeed they showed by their answer. All the indicators, in short, pointed to a continuation of the trial in the normal way. A Prasad direction should not be given merely because the trial judge considers that the Crown case is not a very strong one. That would be to usurp the function of the jury. With all respect to the learned judge, the direction should not have been given in this case.
32 In R v Pahuja,[16] the use of a Prasad direction was considered by Cox J, who said:
... it seems to me that this was not a proper case for a Prasad direction at all. The typical occasion for it in a sexual case will be the discrediting of the complainant in the witness-box – admitted lies or plain contradictions or vacillations – or important contradictions with other Crown witnesses. No doubt there may be other occasions for its use as well, but they are the obvious ones. So far as I can see, there was no foundation at all for the direction here. There was nothing to suggest that the witnesses, including V, did not conform substantially to their witness statements, for instance, and nothing else, certainly on the face of the transcript, that would lead one to type the witnesses as unsatisfactory. If the girl’s demeanour was unimpressive – and that can be an important factor – the learned judge did not suggest as much to the jury. What he did emphasise was that they were likely to end up with two sharply conflicting stories, the girl’s (which, I point out, was not entirely unsupported) and the accused’s. His Honour appears to have thought that that circumstance was a sufficient justification for stopping the trial. In my opinion, it was not. The law in this State does not demand corroboration in sexual cases, and convictions on uncorroborated evidence are not uncommon. I do not think it right that Parliament’s policy on the matter (cf s 34i(5) of the Evidence Act) should be undermined by the giving of a Prasad direction for no other reason than a normal and expected conflict between the Crown and defence witnesses respectively. That would be to usurp or compromise the function of the jury ...
I have said that the learned judge gave the Prasad direction at the request of defence counsel. The submission is recorded in the transcript. It shows that the reason for the direction, that the learned judge gave to the jury, simply reflected the ground upon which it was sought, namely, that the only Crown witness with whom the accused would be taking issue was the girl. That, as I have sought to show, was a quite inadequate basis for the direction.
This is not intended to discourage the use of the Prasad procedure where the circumstances call for it. However, it is no small thing, where there is a case for the accused to answer, to encourage the jury to pre-empt their normal function. Certainly the direction should not be given, in my judgment, virtually as a matter of course, or because the case by its very nature falls into a certain type.[17]
33 In my view, phrases in these authorities such as "evidence ... so lacking in weight and reliability" or "witnesses being patently unsatisfactory" should not be used out of context as criteria which must be satisfied before a Prasad direction can be given. These cases do little more than identify that a Prasad direction should not normally be given, that there needs to be something about the prosecution case which creates in the judge’s mind a real doubt about whether the evidence is capable of proving the charge(s) beyond a reasonable doubt. This may come about because of the discrediting of a particular prosecution witness (or witnesses), or it may come about because of contradictions between prosecution witnesses. In this case, there were contradictions between the evidence given by various prosecution witnesses which created significant doubt about the respondent’s guilt. These contradictions, and the doubt they created about the respondent’s guilt, were highly unlikely to be remedied by any evidence which would have been presented on behalf of the respondent. It was therefore an appropriate case in which to give a Prasad direction. For these reasons, this ground of appeal must also fail.
34 Ground 12 of the appeal appears to contend that the magistrate should have made enquiries about the reasons for any delay in the proceedings and, in particular, should have determined that any delay was caused almost wholly by the respondent. However, I think a more relevant consideration is whether the magistrate was correct in having regard to delay when considering whether to make a Prasad ruling.
35 In considering whether to make a Prasad ruling, the magistrate referred to the following passage in Muller v Ebbw Vale Steel Iron & Coal Co Ltd,[18] where Branson J said:
It seems to me that it must be a matter for the judge who is to try the case to decide for himself whether, in the particular case before him, and having regard to all the circumstances of it, it is likely to save the litigants before him expense and time and trouble to deal with the case by way of ruling upon the submission without putting any terms upon counsel upon either side, or whether it is better to say: "In this case I think it would be desirable that before I rule I should hear the whole of the evidence".[19]
The magistrate appears to have thought that this authority allowed (or required) him to consider "expense and time and trouble" to the parties when determining whether or not to make a Prasad ruling. In my view, this authority is unhelpful in the circumstances of this case because it was in the civil jurisdiction and is limited to consideration of whether or not a party should be required to elect not to call evidence before a submission that there is no case to answer can be entertained, rather than indicating what should be taken into account when considering whether to dismiss the case pursuant to a Prasad ruling.
36 In my view, the only appropriate consideration when determining whether to make a Prasad ruling in the criminal jurisdiction is whether or not the evidence presented has proved the case beyond a reasonable doubt. For this reason, it appears that the magistrate has erred in taking into account delay (and also the length of the trial and the possible future expense). However, as there was insufficient evidence to prove the charges beyond a reasonable doubt, the decision to make a Prasad ruling was in fact correct. This appeal ground is therefore of no consequence.
37 The final ground of appeal is that the magistrate erred in finding that in order to convict the defendant, the court would have to rely upon part of the medical evidence and reject the other medical evidence. The magistrate said:
In order to convict the defendant, the court would have to rely upon one part of the medical evidence, along with the non-medical evidence, and in so doing, to reject the other medical evidence. In particular, it would be required to reject the evidence of Dr Richards, who saw the defendant more than all the other practitioners put together. It would also have to reject the evidence of Dr Woodruffe [sic].
In order to do so, the court would have to perceive some failing in their observations or reasoning or some lesser qualification than possessed by the other medical practitioners. There is no way that any court could do that in a case which requires satisfaction beyond reasonable doubt. Dr Richards was extremely experienced and the only witness currently working in the field of pain management. Dr Woodruffe [sic] was a Fellow of the Royal Australian College of Physicians and rheumatology was his specialty. Their opinions cannot be lightly discarded. There would have to be a compelling reason to discard such evidence. No such reasons emerge.
38 In my view, the magistrate was simply expressing his reasons for finding that the burden of proof had not been met. As already discussed, the evidence of Dr Woodruff and Dr Richards created doubt about the respondent’s guilt. In order to convict the respondent, there would need to be some reason to reject the evidence of these two doctors (as well as any other evidence which created doubt about the respondent’s guilt). The magistrate correctly found that there was no reason to reject the evidence of these two experts. As such, their evidence created doubt about the respondent’s guilt and, therefore, the prosecution failed to prove its case beyond a reasonable doubt. In my view there was no error in the magistrate’s reasoning or his remarks. Therefore, this ground of appeal must also fail.
Conclusion
For the above reasons, I dismiss the appeal.
[1] R v Prasad (1979) 23 SASR 161.
[2] (2006) 160 A Crim R 278.
[3] BCW (2006) 160 A Crim R 278, 282.
[4] [2002] SASC 155.
[5] Tazroo v Police [2002] SASC 155, [18]-[19].
[6] Peters v R [1998] HCA 7; (1998) 192 CLR 493.
[7] (1979) 23 SASR 161.
[8] R v Prasad (1979) 23 SASR 161, 163.
[9] (1984) 38 SASR 256.
[10] (1984) 36 SASR 321, 337.
[11] (1979) 23 SASR 161, 163.
[12] (1984) 36 SASR 321, 336.
[13] Tepper v Di Francesco (1984) 38 SASR 256, 267-268.
[14] R v Prasad (1979) 23 SASR 161, 163.
[15] (1995) 65 SASR 234.
[16] (1987) 49 SASR 191.
[17] R v Pahuja 49 SASR 191, 218-219.
[18] [1936] 2 All ER 1363.
[19] Muller v Ebbw Vale Steel Iron & Coal Co Ltd [1936] 2 All ER 1363, 1365-1366. |
Posted by Veronica at 10:26 PM, 21/9/2007 |
Link |
|
|
Useful Links
SA Unions worker survey
Have your say
WCT Recent Decisions
Workcover Forum
workcover victims
Media Mikes Privatisation agreement
Federal Return to work Monitor report
Austlii Legislation and Case law
Claim Assist
Investigation Standards
State Ombudsman. Last resort but unlikely to assist
Courts Home Page
Liberal Party Media Page
WCT and other Forms
Workcover gone bad
alternative workcover forum
adelaide talkback-workcover
Voice of industrial death
|
