JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: ARMET -v- STEPHEN BROWNE [No 2] [2021] WADC 88
CORAM: SHEPHERD DCJ
HEARD: 6-9 OCTOBER & 5 NOVEMBER 2020
DELIVERED : 24 SEPTEMBER 2021
FILE NO/S: CIV 1375 of 2019
BETWEEN: STEPHANE ARMET
Plaintiff
AND
STEPHEN BROWNE
Defendant
Catchwords:
Tort - Negligence - Solicitor's negligence - Causation - Factual causation - Delay in advice regarding termination date for common law election for damages - Consequential compression of time - Whether causative of plaintiff's failure to elect on time
Legislation:
Civil Liability Act 2002 (WA)
Limitation Act 2005 (WA)
Workers' Compensation and Injury Management Act 1981 (WA)
Workers' Compensation and Injury Management Amendment (COVID-19 Response) Bill 2020 (WA)
Workers' Compensation and Injury Management Regulations 1982 (WA)
Result:
Application dismissed
Representation:
Counsel:
| Plaintiff | : | In person |
| Defendant | : | Mr G P Bourhill |
Solicitors:
| Plaintiff | : | Not applicable |
| Defendant | : | Gilchrist Connell |
Case(s) referred to in decision(s):
Acebrook Corporation Pty Ltd v McEwan [2014] WASCA 162
Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420
Allied Pumps Pty Ltd v Hooker [2020] WASCA 72
Armet v CFC Consolidated Pty Ltd [2019] WASCA 165
AVWest Aircraft Pty Ltd as trustee for AVWest Aircraft Trust v Clayton Utz (a firm) [No 2] [2019] WASC 306
Badenach v Calvert [2016] HCA 18; (2016) 257 CLR 440
Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408
Carradine Properties Ltd v DJ Freeman & Co [1955-1995] PNLR 219
CGU Insurance Ltd v Coote (by his Next Friend Stephen Desmond Coote) [2018] WASCA 117
Cox v Fellows [2013] NSWCA 206
Department of Housing and Works v Smith [No 2] [2010] WASCA 25
Duchess of Argyll v Beuselinck [1972] 2 Lloyd's Rep 172
East Metropolitan Health Services v Ellis (by his Next Friend Christopher Graham Ellis) [2020] WASCA 147
Falkingham v Hoffmans (a firm) [2014] WASCA 140; (2014) 46 WAR 510
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
Hawkins v Clayton (1988) 164 CLR 539
Heydon v NRMA Ltd [2000] NSWCA 374; (2000) 51 NSWLR 1
Ibrahim v The Honourable Justice Carolyn Martin [2012] WASC 338
J-Corp Pty Ltd v Thompson [2019] WASCA 173
Jennings v Zihali-Kiss, Zilahi-Kiss & M K Tremaine & Company Pty Ltd (1972) 2 SASR 493
Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638
Marsh v Baxter [2015] WASCA 169
Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261
Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65
Neil v Nott [1994] HCA 23; (1994) 68 ALJR 509; (1994) 121 ALR 148
Nobarani v Mariconte [2018] HCA 36; (2018) 265 CLR 236
Re White; Ex Parte Cunningham [2015] WASC 349
Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330
Rogers v Whitaker (1992) 175 CLR 479
Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434
Shaw v Thomas [2010] NSWCA 169
Smart v Prisoner Review Board (WA) [2012] WASC 48
Strong v Woolworths Ltd t/as Big W [2012] HCA 5; (2012) 246 CLR 182
Taylor v Fisher [2018] WASCA 126
Townsend v Roussety & Co (WA) Pty Ltd [2007] WASCA 40; (2007) 33 WAR 321
Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
Table of Contents
PART A
1. Introduction and Overview
1.1 The plaintiff's employment
1.2 Workers' compensation claim
1.3 Legal advice
1.4 The referral to Dr Fairhurst
1.5 The plaintiff's tinnitus injury
1.6 The end of the retainer and the plaintiff's termination date
1.7 The steps the plaintiff took after 12 July 2016
1.8 Mr Armet's complaints
1.9 The issues raised in this trial
1.10 Conclusions
2. The ambit of the plaintiff's case
2.1 The plaintiff's pleaded case
2.2 The plaintiff's opening address
2.3 The plaintiff's evidence-in-chief
2.4 The plaintiff's cross-examination of Mr Trigg
2.5 Other complaints
3. Summary of the alleged failures
4. The defendant's case
5. The parameters of the trial
5.1 Background - Outstanding appeals
5.2 The two aspects of this trial
5.3 What was outside the parameters of this trial
5.4 The circumstances of the plaintiff at the time
6. Litigant in person
6.1 Principles
6.2 Procedural fairness to the plaintiff
6.3 Treatment of the plaintiff's documents
6.4 The medical reports tendered
7. General observations on the credibility and reliability of the witnesses
7.1 Mr Trigg
7.2 Mr Armet
PART B
8. The statutory framework
8.1 The Workers' Compensation and Injury Management Act 1981
8.2 Workers' Compensation and Injury Management Regulations
8.3 The Amendments to the Act
PART C
9. The Facts
9.1 Overview
9.2. The instruction of Perth City Lawyers
9.3 The written advice received from Perth City Lawyers
9.3.1 The letter of 23 November 2015
9.3.2 Email of 28 January 2016
9.3.3 Letter of 29 January 2016
9.3.4 Email of 1 February 2016 - the Form 36
9.3.5 Email of 6 February 2016
9.4 The plaintiff's evidence about the advice received from PCL
9.5 Findings
10. The meeting with SBL on 2 February 2021
10.1 Overview
10.2 The documents Mr Trigg saw during the meeting of 2 February 2016
10.2.1 Evidence of the plaintiff
10.2.2 Evidence of Mr Trigg
10.3 The contemporaneous notes made by Mr Trigg on 2 February 2016
10.3.1 Lower back initial information sheet
10.3.2 Tinnitus initial information sheet
10.3.3 One-page handwritten notes of Mr Trigg (exhibit 13)
10.4 What Mr Armet told SBL about his injuries on 2 February 2016
10.5 Advice on the Act
10.5.1 The plaintiff's evidence
10.5.2 Mr Trigg's evidence
10.6 Advice on the common law and the termination date
10.6.1 The plaintiff's evidence
10.6.2 Mr Trigg's evidence
10.7 Advice on seeing an approved medical specialist and an extension to the termination date
10.7.1 The plaintiff's evidence
10.7.2 Mr Trigg's evidence
10.8 Advice on the tinnitus injury
10.8.1 The plaintiff's evidence
10.8.2 Mr Trigg's evidence
11. Findings: 2 February 2016
11.1 The contemporaneous notes of the 2 February 2016 meeting
11.2 Findings: the documents received and or reviewed by Mr Trigg
11.3 Findings: the injuries SBL knew about as at 2 February 2016
11.4 Findings: the advice given on the Act and payments
11.5 Findings: the plaintiff's understanding of what the termination date meant
11.6 Findings: the advice given on the common law, the referral to an approved medical specialist and the extension to the termination date
11.7 Findings: the tinnitus advice given during the 2 February 2016 meeting
12. The general practice for generating and finalising letters and documents
12.1 General practice
12.2 General observations on the receipt by the plaintiff of letters written by SBL
13. Letter of 3 February 2016
13.1 Letter
13.2 Findings on the letter of 3 February 2016
14. 6 February 2016 to 12 February 2016
15. Correspondence of 8 and 9 February 2016
15.1 Letter of 8 February 2016
15.2 8 and 9 February 2016 emails
15.3 Mr Trigg's evidence about the timing of the referral to Dr Fairhurst
15.4 Mr Trigg's evidence about the referral to Dr Fairhurst and not to Mr Narula
15.5 The plaintiff's understanding of the consequences of the appointment with Dr Fairhurst
16. Dr Fairhurst's report 12 February 2016
17. The plaintiff's email of 24 February 2016
18. The defendant's application to extend the common law election date
18.1 The letter of 29 February 2016
18.2 The plaintiff's evidence about the extension to his termination date
18.3 Mr Trigg's evidence
19. Getting files from PCL
20. Findings: the referral to Dr Fairhurst and the plaintiff's understanding of the import of that referral on his termination date
20.1 The referral to Dr Fairhurst
20.2 Findings on Dr Fairhurst's assessment of the plaintiff
20.3 Finding: When SBL advised Mr Armet about the extension to his termination date
21. The evolution of Mr Armet's injuries
21.1 General
21.2 Findings
PART D
22. The tinnitus claim
22.1 Overview
22.2 The evidence
22.3 Findings on the tinnitus
PART E
23. The termination of the retainer
23.1 The evidence
23.2 Events subsequent to the retainer
23.2.1 The letter of 12 July 2016
23.3 Mr Trigg's evidence
23.4 Findings
24. The Events from 13 July 2016
24.1 The plaintiff's evidence
24.2 The tinnitus injury
24.3 The back, foot and neck injuries
24.4 The hair loss
24.5 The psychiatric injury
PART F
25. The failure allegations - Summary and findings
25.1 Failure one - The defendant elected to extend the plaintiff's common law termination date prematurely
25.2 Failure two - The defendant failed to advise the plaintiff of the meaning and import of the common law termination date in which to elect to pursue his employer for damages
25.3 Failure three: The defendant failed to advise the plaintiff of the purpose and consequences of the appointment with Dr Fairhurst, namely that an application would then be made to extend the common law termination date
25.4 Failure four: The defendant failed to take the plaintiff's instructions or to otherwise inform the plaintiff before applying to extend the common law termination date
25.5 Failure five: The defendant failed to advise the plaintiff that it had made an application to extend the termination date on 29 February 2016 or at any time until the 12 July 2016 letter
25.6 Failure six: The defendant failed to advise the plaintiff of the steps required to obtain a whole of person impairment in circumstances where the plaintiff was suffering from multiple injuries
25.7 Failure seven: The defendant's handling of the tinnitus claim
25.8 Failure eight: The defendant's failure to properly investigate the plaintiff's injuries
25.9 Failure nine: The defendant's failure to investigate the plaintiff's allegations of negligence in respect of his employer
25.10 Failure ten: The referral to Dr Fairhurst
25.11 Failure eleven: The fact of the referral to Dr Fairhurst and not to Mr Narula
PART G
26. The duty of care
26.1 Duty of care at common law - the solicitor-client relationship
26.2 The relevant standard of care
26.3 Standard not informed by hindsight
26.4 The retainer and the scope of the retainer between the parties
26.5 The experience of the client
26.6 Application to the facts: The retainer
26.7 Application to the facts: The inexperienced plaintiff
27. The Civil Liability Act 2002 (WA) - When a defendant is not liable for harm
27.1 Overview
27.2 Risk of harm
27.3 Foreseeability
27.4 Not insignificant
28. Duty of care application to the facts
28.1 General comments
28.2 Conclusion: Foreseeability
28.3 Conclusion: 'Not insignificant'
28.4 The relevance of representation moving forward
28.5 Relevant circumstances
28.6 Conclusion: relevant circumstances and precautions
28.7 Conclusion on breach of duty of care
PART H
29. Causation - General principles
29.1 Overview
29.2 The factual question for determination
29.3 Identifying the Harm - the loss of a reasonable opportunity
29.4 'Necessary condition' or 'Material contribution'
29.5 The 'but for' test
29.6 Initial observations
30. The plaintiff's evidence about causation
31. Conduct of the trial in respect of the evidence as to causation
32. The plaintiff's evidence about Mr Narula's final report
33. The WorkCover Guidelines
34. Absence of evidence from Mr Narula
35. The investigations into the plaintiff's injuries
35.1 The hair loss injury
35.2 The tinnitus injury
35.3 The psychiatric injury
35.4 The back, the foot and the neck injury
36. Findings on causation
PART I
37. Conclusion
38. Final orders
ANNEXURE 1
SCHEDULE OF THE PLAINTIFF'S DOCUMENTS - EXHIBIT 1
SCHEDULE OF THE PLAINTIFF'S DOCUMENTS - EXHIBIT 2
SHEPHERD DCJ:
PART A
Introduction and Overview
1.1 The plaintiff's employment
In 2015 Stephane Armet, a French national, was employed as a manual labourer by CFC Consolidated Pty Ltd (CFC). His duties comprised the manual loading, unloading and dispatch of goods. To assist he was authorised to operate an electric ride-on pallet jack to move pallets outside the warehouse and to collect pallets from other locations.
The flooring inside the warehouse was smooth; when operated on that surface the machine did not vibrate and neither did it make any noise. When operated outside of the warehouse, on a gravel or road surface, the machine vibrated excessively and produced excessive noise. Mr Armet operated that device three to four hours per day.
On 18 March 2015 Mr Armet was sent to work at a new location to manually unload cartons from a container. No safety briefing nor instructions were given before he commenced the task; no supervision was provided by CFC. The container was 2.92 m in height and was stacked to the roof with an estimated 900 cartons, each weighing approximately 37 kg. The cartons were 1.5 m long and 40 cm thick. In order to reach the cartons at the top of the container Mr Armet climbed onto a milk crate to unload the cartons manually. During the course of those duties Mr Armet says that he injured his lower back and his right foot.
1.2 Workers' compensation claim
On 30 July 2015 Mr Armet lodged a claim for workers' compensation in respect of his lower back injury. He described this on the form as 'backache with sciatica'.
Mr Armet had some time off work utilising his sick leave. In September 2015 Mr Armet returned to work at CFC. The electric ride‑on pallet jack had been removed and Mr Armet says that he was required to perform the same duties as before he went on leave using a manual pallet jack. His duties were otherwise unchanged.
Between 2 and 4 September 2015 Mr Armet says he sustained an aggravation to his initial injury and suffered pain to both sides of his lower back, his leg and his foot.
Mr Armet did not return to work after 4 September 2015.
Mr Armet said that after he had ceased working for CFC he started to suffer from neck pain[1] (the neck injury) and 'there was this mad ring in the ear that I didn't know what it was, who was bothering me'.[2] By reason of the ongoing operation of the electric ride‑on pallet machine over rough surfaces, and by reason of the excessive noise to which he was thereby exposed prior to September 2015, Mr Armet claimed that he sustained a tinnitus injury (the tinnitus injury).
[1] ts 109.
[2] ts 109.
Mr Armet was prescribed Naproxen in May 2015 for the pain he was suffering in his back and foot. He began to lose his hair which he says was caused by the Naproxen. Mr Armet claims that his hair loss was therefore a work-related injury (the hair loss injury).
Some time later, Mr Armet also complained of suffering a psychiatric injury that he said developed gradually since the occurrence of his first injury at work on 18 March 2015 (the psychiatric injury).[3]
1.3 Legal advice
[3] Exhibit 2, page 37.
On or around 23 November 2015 Mr Armet instructed Perth City Legal (PCL) for advice in respect of his injuries, his position in respect of his workers' compensation claims and any potential common law negligence claim against CFC.
By the time Mr Armet instructed PCL he claims to have been suffering from five injuries: his back, his foot, his neck, his tinnitus and his hair loss which 'was noticeable at that time'.[4] The injuries did not include the psychiatric injury, about which the plaintiff later complained, because 'nobody told me I was getting crazy'.[5] The plaintiff claimed that all five injuries were caused by CFC's negligence.
[4] ts 115 - ts 116.
[5] ts 116.
Mr Armet's relationship with PCL was short-lived.
On 2 February 2016 Mr Armet met with, and instructed, Joel Trigg, solicitor and Director of SB Law Pty Ltd, trading as Stephen Browne Lawyers (SBL), the defendant in these proceedings.
That relationship was also one of short duration, terminating on 11 May 2016 after just three months and nine days.
At the time of instructing SBL Mr Armet had until 30 July 2016 in which to lodge his election to pursue CFC for damages at common law (the initial termination date).
1.4 The referral to Dr Fairhurst
Having met with Mr Trigg on 2 February 2016, SBL referred Mr Armet to an approved medical specialist, Dr Andrew Fairhurst, for assessment in respect of Mr Armet's back injury and his foot injury.
Mr Armet was examined by Dr Fairhurst on 12 February 2016. Dr Fairhurst determined that Mr Armet's back injury had not yet sufficiently stabilised to determine a final whole of person impairment assessment. Dr Fairhurst completed a report to SBL as well as the prescribed forms under the Regulations[6] certifying that Mr Armet's injuries had not yet reached maximum medical improvement. Dr Fairhurst certified that an extension of time was required in respect of the initial termination date to 12 February 2017, one year from the date he examined Mr Armet.
[6] Forms AMS 7 and 8, Workers' Compensation and Injury Management Regulations 1982 (WA) (the Regulations).
On 29 February 2016 SBL applied to the Director of Conciliation at WorkCover for an extension to Mr Armet's initial termination date to 12 February 2017 (the termination date); that extension was granted by WorkCover on 9 March 2016.
Whilst Dr Fairhurst's assessment was confined to Mr Armet's back injury and his foot injury, his injuries were not so confined.
1.5 The plaintiff's tinnitus injury
In November 2015 Mr Armet had filed a workers' compensation claim in respect of his tinnitus injury. On 21 January 2016 the insurer, GIO, denied liability in respect of that claim. On 25 January 2016 Mr Armet lodged a Form 100 at WorkCover (the conciliation application) to dispute the insurer's dismissal of his tinnitus claim. The conciliation application lodged by Mr Armet was, however, defective and WorkCover advised Mr Armet that further information was required before the application would be accepted.
Following the initial meeting with Mr Armet on 2 February 2016, SBL wrote to WorkCover by email dated 5 February 2016 to advise that SBL now represented Mr Armet and that a new application (Form 100) would be filed 'shortly'.[7] Upon receipt of that email from SBL, WorkCover withdrew the conciliation application filed earlier by the plaintiff.[8] SBL ultimately filed a new conciliation application in early May 2016.
1.6 The end of the retainer and the plaintiff's termination date
[7] Exhibit 1, page 231.
[8] Exhibit 8.
By early May 2016 the relationship between Mr Armet and SBL was souring and by 11 May 2016 the retainer between the parties was terminated.
Two months after the end of the retainer by letter dated 12 July 2016 (the 12 July 2016 letter), emailed to Mr Armet on 13 July 2016, SBL wrote to Mr Armet stating: 'We again remind you that in respect of your back claim, your termination date has been extended until 12 February 2017'[9] (emphasis added).
[9] Exhibit 26.
Whilst the language of that correspondence suggested that Mr Armet had previously been informed that the termination date for his back claim had been extended, Mr Armet disputes that this had occurred.
Mr Armet's evidence was that the 12 July 2016 letter was the first time he was informed that there had been an extension to his initial termination date and the first time that he had been informed that his termination date was now 12 February 2017.
By the time that Mr Armet accepts that he was informed that his termination date had been extended, time was running on the time in which he had to lodge his election for common law damages with the Director at WorkCover.
By the time that Mr Armet accepts that he was notified of his termination date he had lost approximately four to four and a half of the twelve months he had to meet his election criteria as prescribed under the Act to pursue CFC for damages at common law. On a simple arithmetic application this was a compression of the time Mr Armet had under the Act of approximately 30%.
1.7 The steps the plaintiff took after 12 July 2016
Having been informed of the extension to his termination date, Mr Armet took a number of steps to make appointments with different approved medical specialists in respect of his different injuries. He underwent further testing and investigation in respect of some of those injuries.
Mr Armet ultimately issued formal requests in the manner prescribed in the Act and the Regulations (the issue of 'Forms AMS 1') for whole of person impairment assessments to four different approved medical specialists as follows:
(i)A Form AMS 1 to Dr Ian Wallace, ENT specialist, on 8 September 2016 in respect of his tinnitus injury.
(ii)Three separate Forms AMS 1 to Mr Soni Narula, neurosurgeon, on 5 October 2016 in respect of his lumbar spine injury; his foot, heel pain and right leg injury and his neck/spine injury respectively.
(iii)A Form AMS 1 to Dr Gebauer, dermatologist, on 22 March 2017 in respect of his hair loss injury.
(iv)A Form AMS 1 to Dr Peter McCarthy, psychiatrist, on 9 October 2017 in respect of his psychiatric condition.
The Forms AMS 1 in respect of the hair loss and psychiatric injuries were not formally issued by Mr Armet until after the termination date had expired.
Mr Narula was nominated by Mr Armet as the 'lead assessor' to aggregate and collate all of the individual whole of person impairment assessments prepared by the four different approved medical specialists.
Mr Armet did not lodge an election on or before 12 February 2017.
Mr Narula completed the overall whole of person impairment assessment for all of Mr Armet's injuries in the prescribed form (Form AMS 5) on 12 February 2018, one year after the termination date had expired.
1.8 Mr Armet's complaints
Even though Mr Armet's complaints about the defendant's conduct are wide ranging,[10] in my opinion, his relevant complaints in respect of his termination date can be distilled to the following:
(i)SBL applied to extend the initial termination date (30 July 2016) too early (29 February 2016). The effect of that was to deprive Mr Armet of five additional months for his injuries to stabilise and for him to comply with his election criteria; and
(ii)SBL failed to advise Mr Armet until the 12 July 2016 letter that an application had been made, and granted, to Mr Armet's termination date. The effect of that was to significantly compress the time in which he had to be able to meet his election criteria in the prescribed manner by the prescribed date.
[10] See sections 2 and 3.
Mr Armet says that the compression of time was of such significance that he was deprived thereby of a reasonable opportunity to meet his election on time. Put pithily Mr Armet said: 'Even if I was God I was not able to make it on time'.[11]
[11] ts 258.
Mr Armet brings this claim in negligence against the defendant.
1.9 The issues raised in this trial
In my opinion there are ten real issues raised in this case:
(i)What injuries did SBL know or ought reasonably to have known Mr Armet was suffering that arose out of his workplace accidents during the period of the retainer?
(ii)Did SBL inform Mr Armet that the outcome of the referral to Dr Fairhurst would likely mean that SBL would then apply to WorkCover for an extension to the initial termination date?
(iii)Did SBL inform Mr Armet that it had made an application to extend the initial termination date?
(iv)Did SBL apply 'too early' for an extension to the initial termination date?
(v)Prior to the 12 July 2016 letter, did SBL inform Mr Armet that the application to extend the termination date had been granted, and granted to 12 February 2017?
(vi)What was the effect of SBL's failure to advise Mr Armet of the extension to his termination date until the 12 July 2016 letter?
(vii)What was the effect of the 12 July 2016 letter? Did it remedy any breach of SBL's duty of care?
(viii)In assessing the foreseeability of the risk of harm (the risk of Mr Armet losing a reasonable opportunity to meet his election criteria) and in assessing whether that risk was 'not insignificant', which injuries are taken into account?
(ix)In determining factual causation, what is the relevance of the fact that by:
(a)5 October 2016 Mr Armet had done everything he could do in requesting in the prescribed manner that Mr Narula provide a whole of person impairment assessment in respect of the injuries falling within his area of expertise?
(b)8 September 2016 Mr Armet had done everything he could do in having his tinnitus injury investigated and in having a report from Dr Wallace that provided a whole of person impairment estimate for that injury?
(c)13 September 2016 Mr Armet had done everything he could do in having his hair loss injury investigated and in having a report from Dr Gebauer that postulated a causal link between the pain killing medication and his hair loss?
(x)In determining factual causation what is the relevance of the absence of evidence from Mr Narula at trial?
The issues I have identified do not precisely mirror the language of the plaintiff's complaints summarised in section 3. That is because I consider that the determination of the issues I have identified are necessary in order to answer the plaintiff's complaints.
1.10 Conclusions
For the reasons that follow I find that:
(i)The injuries attributable to Mr Armet's workplace accidents known or reasonably known to SBL during the period of the retainer were the back, the foot and the tinnitus injuries.
(i)SBL did not inform Mr Armet that the outcome of the referral to Dr Fairhurst would likely mean that SBL would then, without further notice to Mr Armet, apply to WorkCover for an extension to the initial termination date.
(iii)SBL did not inform Mr Armet that it had applied to extend his termination date.
(iv)SBL was not negligent in applying to extend the initial termination date 'too early'. SBL was acting in Mr Armet's best interests at the time.
(v)SBL did not inform Mr Armet that the application to extend the termination date had been granted, and granted to 12 February 2017, until the 12 July 2016 letter. This comprised a breach of the duty of care SBL owed to Mr Armet.
(vi)The effect of SBL's failure to advise Mr Armet of the extension to his termination date until the 12 July 2016 letter was to compress the time in which Mr Armet had to comply with his election criteria.
(vii)The 12 July 2016 letter brought SBL's breach of its duty of care to an end; it did not remedy that breach.
(viii)In assessing the foreseeability of the risk of harm (the risk of Mr Armet losing a reasonable opportunity to meet his election criteria) and in assessing whether that risk was 'not insignificant' the injuries that are taken into account are the back, the foot and the tinnitus injuries.
(ix)The following facts are relevant to my determination of whether the plaintiff has discharged the burden of proof that he bears in proving factual causation:
(a)the fact that by 5 October 2016 Mr Armet had done everything he could do in requesting in the prescribed manner that Mr Narula provide a whole of person impairment assessment in respect of the plaintiff's back, foot and neck injuries;
(b)the fact that by 8 September 2016 Mr Armet had done everything he could in having his tinnitus injury investigated and in having a report from Dr Wallace that provided a whole of person impairment estimate for that injury;
(c)the fact that by 13 September 2016 Mr Armet had done everything he could in having his hair loss injury investigated and in having a report from Dr Gebauer that postulated a causal link between the pain killing medication and his hair loss injury;
(d)the fact that Mr Armet could have issued the Form AMS 1 in respect of his hair loss injury prior to the termination date;
(e)the fact that Mr Armet did not take any steps to consult Dr McCarthy, psychiatrist, until 9 October 2017, eight months after the expiry of the termination date.
(x)The absence of evidence from Mr Narula at trial is a relevant factor in my determination of causation. There is no evidence from Mr Narula explaining why he was not able to complete the whole of person impairment assessment for the back, foot and neck injuries prior to the termination date, nor to explain why the aggregated assessment was not completed until 12 February 2018, one year after the termination date had expired. I note also that the plaintiff's evidence at trial was that it was not for him to tell Mr Narula 'what to do and when to do it'.[12]
[12] ts 303.
I conclude that SBL's failure to advise the plaintiff of the extension to his termination date until the 12 July 2016 letter comprised a breach of the defendant's duty of care it owed to the plaintiff.
I conclude that the effect of the breach of the defendant's duty of care was to compress the time the plaintiff had in which to make his election for common law damages.
The plaintiff bears the onus of proving all relevant facts in respect of causation on the balance of probabilities. I am therefore bound to determine the issue of causation on the evidence before me.
In this case I conclude for the reasons I outline in Part H that Mr Armet has failed to discharge the burden he carries of proving that the breach by SBL of its duty of care was causative of Mr Armet's failure to make his election on time.
I therefore dismiss the plaintiff's action.
The ambit of the plaintiff's case
The ambit of the plaintiff's case can be summarised in the following way.
2.1 The plaintiff's pleaded case
In his statement of claim,[13] the plaintiff pleaded five particulars of negligence asserting that the defendant:
(i)failed to delay the application for an extension of the election until a date closer to the initial termination day;
(ii)failed to seek the plaintiff's instructions prior to making such an application for an extension;
(iii)failed to properly explain the legal import of the termination day, the necessary election and any extension of that to the plaintiff;
(iv)failed to obtain medical reports to support such election in a timely manner; and
(v)failed to advise the plaintiff of the necessity for securing medical reports prior to 12 February 2017, the new termination day.
2.2 The plaintiff's opening address
[13] Statement of claim filed 10 May 2019, par 19.
In his opening address the plaintiff described his claim in the following way:
(i)Seventy percent of the defendant's alleged negligence was due to the 'misuse of the termination day'.[14]
(ii)Twenty percent was due to withdrawing a conciliation application for the plaintiff's tinnitus injury.[15]
(iii)Ten percent was due to an 'obsession, harassment or pressure' for the plaintiff to settle his workers' compensation claim for his back injury.[16]
(iv)A change in law regarding the termination day as a result of the Workers' Compensation and Injury Management Amendment (COVID-19 Response) Act 2020 (WA).[17]
(v)The defendant did not take time to appreciate and understand the alleged negligence of the plaintiff's employer.[18]
2.3 The plaintiff's evidence-in-chief
[14] ts 73.
[15] ts 73; a claim not pleaded.
[16] ts 73; a claim not pleaded.
[17] ts 74, ts 76 - ts 77; a claim not pleaded.
[18] ts 77 - ts 78.
In his examination-in-chief, in addition to the points raised above, the plaintiff made a number of further claims as follows:
(i)The defendant did not respond to his email of 7 February 2016 forwarding the GIO Form 36, which he says was a crucial email.
(ii)The plaintiff did not know that his assessment with Dr Fairhurst was to extend the termination day.
(iii)There was something 'dodgy' about the speed at which his assessment was arranged with Dr Fairhurst.
(iv)The defendant's letter to the plaintiff dated 8 February 2016 sent on a Monday for a medical examination on the Friday of the same week was 'authoritarian correspondence'.
(v)The defendant did not ask Dr Fairhurst to assess the plaintiff's neck injury.
(vi)Dr Fairhurst did not make a permanent whole of person impairment assessment for his foot and omitted the results from the plaintiff's MRI conducted on his foot on 7 and 11 December 2015.
(vii)The defendant was supposed to lodge a Form 100 for conciliation in February 2016 however it did not do so until May 2016.
(viii)Mr Trigg was half an hour late for a meeting with barrister Kevin Pratt in May 2016.[19]
(ix)Complaints about charges for legal services.
(x)Mr Armet did not see a copy of the application for an extension of the termination day until 13 July 2016.
2.4 The plaintiff's cross-examination of Mr Trigg
[19] Pursued in cross-examination of Mr Trigg as well.
The plaintiff pursued the following additional allegations during his cross-examination of Mr Trigg:
(i)That it was a condition before making an election to pursue a common law claim to prove an employer's negligence.
(ii)If the plaintiff had received the irrevocable authority from PCL, as sent to him by the defendant, he would have signed that document (to allow the defendant to obtain the plaintiff's documents from PCL).
(iii)That the defendant referred the plaintiff for a medical assessment with Dr Fairhurst rather than Mr Narula.
2.5 Other complaints
The plaintiff has raised numerous other complaints about the defendant's conduct which are wide ranging in their scope. I have read and considered the documents submitted by the plaintiff to the court.[20] To the extent that the plaintiff raises other complaints either in writing in his books of documents or orally, where I consider that those complaints are not necessary to determine this matter, I do not deal with them.[21]
[20] Exhibits 1 and 2 at trial – see Schedule of Documents at Appendix 1.
[21] For example, complaint that Mr Trigg was late for the meeting with barrister Kevin Pratt on 5 May 2016; The language of the letter of 8 February 2016 informing the plaintiff of the appointment with Dr Fairhurst and that there was something 'dodgy' about the speed at which his assessment was arranged with Dr Fairhurst.
Summary of the alleged failures
The plaintiff's complaints about the defendant's conduct can be distilled into 11 alleged failures:
1.The defendant elected to extend the plaintiff's common law termination date prematurely (Failure one).
2.The defendant failed to advise the plaintiff of the meaning and import of the common law termination date in which to elect to pursue his employer for damages (Failure two).
3.The defendant failed to advise the plaintiff of the purpose and consequences of the appointment with Dr Fairhurst, namely that an application would then be made to extend the common law termination date (Failure three).
4.The defendant failed to take the plaintiff's instructions or to otherwise inform the plaintiff before applying to extend the common law termination date (Failure four).
5.The defendant failed to advise the plaintiff that it had made an application to extend the termination date on 29 February 2016 or at any time until the defendant's letter of 12 July 2016 (Failure five).
6.The defendant failed to advise the plaintiff of the steps required to obtain a whole of person impairment assessment in circumstances where the plaintiff was suffering from multiple injuries (Failure six).
7.The defendant failed to lodge the plaintiff's Form 100 tinnitus conciliation form (or the defendant's withdrawal of the plaintiff's conciliation application) and its failure to inform the plaintiff of this until May 2016 (the defendant's handling of the tinnitus claim) (Failure seven).
8.The defendant's failure to refer the plaintiff to an ENT specialist for his tinnitus claim; the failure to include the plaintiff's neck injury in the referral to Dr Fairhurst; the defendant's failure to investigate the neck injury and the plaintiff's hair loss injury (the defendant's failure to properly investigate the plaintiff's injuries) (Failure eight).
9.The defendant's failure to investigate the plaintiff's allegations of negligence in respect of his employer (Failure nine).
10.The referral to Dr Fairhurst (Failure ten).
11.The referral to Dr Fairhurst and not to Mr Narula (Failure eleven).
The defendant's case
The defendant did not dispute that it owed the plaintiff a duty of care.[22]
[22] ts 203.
The defendant's case was run on the basis that the defendant did not dispute the manner in which the plaintiff had described how he was injured, that it was 'always a possibility' that the facts as described by the plaintiff could give rise to a claim against CFC, the plaintiff's employer.[23]
[23] ts 79.
The defendant's case in summary is that the period of the retainer between the defendant and the plaintiff was short. In the time that it represented the plaintiff nothing that the defendant did could be described as negligent conduct and, further, nothing that the defendant did actually deprived the plaintiff of any right that he had.[24]
[24] ts 79.
The question for any solicitor advising a potential plaintiff worker in these types of claims is firstly to look at the level of disability and assess, with reference to the Workers' Compensation and Injury Management Act 1981 (WA) (the Act), what can be done with the level of impairment. That is because if the plaintiff failed to reach at least a threshold of 15% whole of person impairment (the threshold impairment), the plaintiff is prevented from making an election for common law damages.
In the event that a plaintiff is unable to reach the threshold impairment, there is then no reason to look at the liability interlopers. Even if CFC had been negligent, a failure to reach the threshold impairment would mean that the plaintiff was legislatively prevented from pursuing CFC at common law for damages.[25]
[25] ts 80.
In light of this, in the brief period of the retainer between the parties, the defendant was wholly focussed on the question of whether the plaintiff met the threshold impairment.[26]
[26] ts 80.
That in itself became a complex issue because this was not a matter in which the plaintiff claimed to have had just one disability or one injury; there were in fact a total of six different medical conditions which the plaintiff attributed to his employment. The defendant argued that it is not clear, and it was not clear to the defendant during the period of the retainer, that all of those injuries were related to the plaintiff's employment so as to be compensable injuries.[27]
[27] ts 80.
The defendant's position is that the plaintiff was advised of all of the necessary information regarding his common law termination date and his election, having received it not only from SBL, but also from his previous lawyers, PCL. The plaintiff had also received the Form 36 from GIO, the workers' compensation insurer, which also provided an explanation about his common law termination date in 'similar terms'.[28]
[28] ts 83 - ts 84.
The defendant denied that it was negligent in applying to extend the common law termination date early, that is by Form 35 dated 29 February 2016, and not waiting until closer to the initial termination date of 30 July 2016 to make the application for an extension.
The defendant argued that there was no set date at which an application for an extension has to be made or can be made and it can be made at any point in time.[29]
[29] ts 84.
The practice of SBL was to refer clients to Dr Fairhurst because SBL knew from experience that Dr Fairhurst was prompt in returning the necessary forms and more often than not in providing an opinion that the termination date needed to be extended.[30]
[30] ts 84.
The benefit or advantage of getting an extension of the termination date is that it gave the lawyer more time to give more consideration to the merits, both of the possibility of the injuries exceeding the threshold impairment and, in the event that it did, to assess the prospects of succeeding with a claim in negligence against the employer.[31]
[31] ts 84.
The defendant says that this was multi-faceted in that the application for an extension to the termination date must be made in accordance with the prescribed forms and in the prescribed manner under the Regulations.
The defendant had confidence that Dr Fairhurst would conduct a thorough assessment and would complete the correct forms in a timely manner in compliance with the Act and the Regulations, thereby ensuring that the plaintiff's ability to elect was preserved.
Leaving the application for an extension of time until closer to the termination date, namely 30 July 2016, ran the risk that, at that stage, the approved medical specialist may not have determined that an extension of time was warranted in that the worker may have reached maximum medical improvement.
In the circumstances as the defendant knew them to be at the time, the referral to Dr Fairhurst and the application to extend the termination date at the time they were done were acts taken by the defendant in the best interests of the plaintiff.
After the termination of the retainer SBL wrote the 12 July 2016 letter that was emailed to the plaintiff on 13 July 2016. That letter included the notice from WorkCover stating that the termination date had been extended to 12 February 2017.[32]
[32] ts 85.
The defendant acknowledged that while criticism could be levelled at SBL for not having advised the plaintiff of that earlier, from a causative point of view the defendant submitted that it made no difference.
On the defendant's case, at that point in time, the plaintiff still had ample time in which to do what was needed to be done to pursue the claim if he was able to get the necessary whole of person impairment assessment.[33]
[33] ts 85.
The defendant's position therefore is that even if there was some neglect on the part of SBL during the period of the retainer, which the defendant denied there was, by 13 July 2016 when the plaintiff received SBL's letter together with the formal notice from WorkCover, the plaintiff then knew that the termination date had been extended.
The plaintiff then set about taking the steps that would have rectified any concern in relation to complying with that termination date.[34]
[34] ts 86.
The defendant argued that the plaintiff knew what he needed to do in order to meet his election criteria and that is demonstrated by the fact that in October 2016 the plaintiff issued a number of Forms under the Regulations. In particular, the plaintiff issued his own Forms AMS 1 to approved medical specialists.[35]
[35] ts 86.
The defendant says that three of those Forms AMS 1 were sent to the neurosurgeon Mr Narula between 1 ‑ 5 October 2016.[36] At that point there were still four months to run before the termination date.
[36] ts 86 - ts 87.
The defendant says that the plaintiff had, at least by that point in time, done anything that a lawyer would have done to put himself in the position to pursue his election for common law damages.[37]
[37] ts 87.
From a causative point of view the defendant says that even if there is any finding of neglect, which the defendant denies, any neglect was not causative of the plaintiff's loss.[38]
[38] ts 87.
The parameters of the trial
5.1 Background - Outstanding appeals
At the time that this matter was listed for trial, there were two outstanding appeals from decisions of the WorkCover Arbitrator on whether the plaintiff's neck and hair loss complaints and, separately, his tinnitus complaints, were compensable claims. The Arbitrator had ruled that they were not compensable claims. At the time of the hearing of this matter, the appeals (consolidated into one appeal) to the District Court against the findings of the Arbitrator had not been finalised.[39]
[39] ts 87.
A previous application for these proceedings to be stayed had been refused. No further application for a stay of proceedings was brought prior to the commencement of the trial and the plaintiff maintained his wish to progress his action.
The defendant argued that it was 'in contest' whether all of the disabilities or conditions of which the plaintiff complained arose out of his workplace accidents so as to be compensable injuries. Specifically, that none of the neck, hair loss nor tinnitus injuries had been determined to be compensable injuries and that the psychiatric injury was not an injury which was capable of comprising any part of the plaintiff's whole of person impairment aggregated assessment.
The significance of this argument is that the plaintiff relies upon an aggregation of a number of his injuries in order to reach the threshold impairment in order to be able to elect to pursue his employer in common law for negligence.
The defendant argued that the plaintiff's hair loss injury, tinnitus injury, neck injury and psychiatric injury were not capable of being utilised, separately or in combination, to found any part of the impairment threshold. Accordingly, the defendant argued, those injuries could not be used as part of any election to pursue CFC at common law for damages because such an election could only be made for injuries which are compensable.[40]
5.2 The two aspects of this trial
[40] ts 87.
By reason of the outstanding consolidated appeal, the parameters of this trial were necessarily confined to two aspects: a determination of whether the defendant was negligent and, if so, whether the defendant's negligence caused the plaintiff's loss.
I define the plaintiff's 'loss' in the context of this case as meaning the loss of a reasonable opportunity for the plaintiff to meet his election criteria in the prescribed manner and within the prescribed time.
5.3 What was outside the parameters of this trial
It was outside the agreed parameters of this trial to determine:
(i)Whether the plaintiff's employer had been negligent.[41]
(ii)Whether that negligence, if proved, caused all or some of the injuries the plaintiff alleges (lumbar spine, foot/plantar fasciitis, neck, tinnitus, hair loss, psychiatric issues).
(iii)The extent of any whole of person impairment assessment for the plaintiff's injuries (either individually or aggregated).
(iv)Any assessment of damages arising from any reduction in the plaintiff's opportunity in pursuing his employer for common law damages.[42]
5.4 The circumstances of the plaintiff at the time
[41] See ts 79.
[42] ts 202 - ts 233.
English is a second language for Mr Armet. He originates from France and grew up on the French speaking island of Reunion. Prior to sustaining his injuries in 2015, Mr Armet was employed as a labourer. He had no familiarity with the Australian legal system.
The workers' compensation legislation is a complex system, exacerbated in Mr Armet's case by the fact that his claims involved a multiplicity of injuries.
The trial took place in late 2020, some four and a half years after Mr Armet instructed the defendant. During trial Mr Armet was able to communicate in English. It was apparent, however, that his English was still not fluent and at times he struggled to explain himself easily.
The materials before the court also demonstrated that the plaintiff did not always fully understand the entire context of some communications and the nuances of formal language, even if he understood the literal content of those communications. An example of this is the plaintiff's reaction to receipt of SBL's letter of 8 February 2016 advising him of the appointment made for him to attend Dr Fairhurst's office for review.[43] The plaintiff understood this to be 'authoritarian correspondence'.
[43] ts 153 - ts 158; Exhibit 1, pages 346 - 347.
In the course of Mr Armet's oral evidence it was not always easy to understand him. Where it was not clear to me what his evidence was I sought to clarify his evidence through direct questioning.
His evidence comprised not only his answers to the questions, but, in his case, very much his intonation, his body language and his gestures.
It was clear that the events about which Mr Armet gave evidence were deeply personal to him. His evidence and the manner in which he gave his evidence demonstrated that he carried a genuinely felt sense of injustice and his emotions were often close to the surface.
In recognition of the difficulty he was clearly experiencing in managing his emotions whilst representing himself and giving evidence in a language other than his native tongue, Mr Armet was given a considerable degree of flexibility and latitude in the presentation of his case.
Litigant in person
6.1 Principles
In dealing with these issues, I recognise that Mr Armet is a litigant in person. As such, he is entitled to some leniency in relation to compliance with the court rules.[44] I approach the documents in which he articulates his claim with some flexibility.[45] I need to be astute to ensure that, in a poorly expressed or unstructured document in which he sets out his case, there is no viable case which, with appropriate amendment or permissible assistance from the court, could be put into proper form.[46]
[44] Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10] (reasons of the court).
[45] Wentworth v Rogers(No 5) (1986) 6 NSWLR 534, 536 ‑ 537 (Kirby P), 543 (Hope JA, with whom Samuels JA agreed); Smart v Prisoner Review Board (WA) [2012] WASC 48 [10] (Pritchard J).
[46] Ibrahim v The Honourable Justice Carolyn Martin [2012] WASC 338 [21] (Beech J); Tobin v Dodd [2004] WASCA 288 [15] (EM Heenan J, with whom Murray & Le Miere JJ agreed).
I recognise that a frequent consequence of self‑representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy.[47]
[47] Neil v Nott [1994] HCA 23 [5]; (1994) 68 ALJR 509, 510; (1994) 121 ALR 148, 150 (Brennan, Deane, Toohey, Gaudron & McHugh JJ); Ibrahim v The Honourable Justice Carolyn Martin [21]; Glew v Frank Jasper Pty Ltd [10]; Tobin v Dodd [14].
At the same time, I also need to ensure that any latitude given to Mr Armet as a litigant in person does not deprive the defendant of its rights to procedural fairness and a fair hearing.[48]
[48] Nobarani v Mariconte [2018] HCA 36; (2018) 265 CLR 236 [47] (Kiefel CJ, Gageler, Nettle, Gordon & Edelman JJ); Woodley v Woodley [2018] WASCA 149 [76] (judgment of the court); Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65 [51] (judgment of the court).
The balance is struck by limiting the assistance given to a litigant in person to that necessary to overcome, so far as is reasonably practicable, the procedural disadvantages a litigant in person faces by reason of not being legally trained.[49] As the Court of Appeal observed:[50]
1.The court's obligation is to ensure a fair and just trial for all parties …
2.A self-represented litigant is subject to the practice and procedure of the court as much as any other litigant …
3.The court's obligation in the case of a self-represented litigant is to give sufficient information about the practice and procedure of the court to mean that there is a fair trial to both parties (the application of the principle depending on the circumstances of the case) … Among other things a trial judge should usually inform a self-represented litigant of the manner in which the trial is to proceed and his or her right to examine witnesses and object to evidence. Also, it will usually be of importance to ensure that a self-represented litigant understands the distinction between evidence and submissions ...
4.A trial judge's duty does not extend to advising a self‑represented litigant as to how his or her rights should be exercised …
5.All the more so the trial judge's role in providing information to the self-represented litigant with the object of attempting to overcome procedural disadvantages faced by not being legally trained is not a duty to formulate or conduct the case for the self‑represented litigant …
6.2 Procedural fairness to the plaintiff
[49] Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40 [74] (judgment of the court).
[50] Zerjavic v Chevron Australia Pty Ltd [75] (references omitted).
The plaintiff was not familiar with the processes and procedures of the court and court protocols and he required some guidance from the court. That is no criticism of the plaintiff.
It became apparent following the conclusion of the plaintiff's evidence that he may not have appreciated the necessity for him to establish, on the balance of probabilities, that the alleged breach of SPL's duty of care caused the harm of which he now complains, namely the loss of a reasonable opportunity for him to be able to meet his election criteria in the prescribed manner before the termination date.
The plaintiff was therefore given the opportunity to reopen his evidence in order to specifically address the issue of causation.[51]
[51] ts 222, ts 229.
In addition, the plaintiff was afforded the opportunity to call Mr Narula to give evidence about causation; specifically, to explain why it was 'impossible'[52] as the plaintiff maintained, for the whole of person impairment assessments to be completed and lodged before the termination date.
[52] ts 532.
The plaintiff was given that opportunity[53] and declined to call Mr Narula to give evidence.[54]
6.3 Treatment of the plaintiff's documents
[53] ts 532 - ts 534.
[54] ts 533 - ts 535.
The court received two files of documents from the plaintiff. The attachments to the plaintiff's affidavit sworn 4 August 2020 (pages 1 ‑ 395) became exhibit 1 at trial. The attachments to the plaintiff's affidavit dated 10 August 2020 became exhibit 2 at trial (pages 1 - 307).
It is clear that not all the documents contained in those two bundles of materials are documents that are capable of being taken as exhibits. A considerable number of the documents contained in the plaintiff's files were inadmissible: they comprised chronologies and summaries and submissions by the plaintiff about his case or were otherwise irrelevant material.
I have read both bundles of documents tendered by the plaintiff in their entirety. To the extent that any of the documents in the plaintiff's files are not evidence, I have nonetheless read and considered those documents and taken them into account as part of the plaintiff's submissions to the court.
A schedule annexed to this decision sets out the pages of the bundles of documents received from the plaintiff that are properly admissible as evidence and those documents upon which the plaintiff relied as comprising part of his broader submissions and argument in this trial. The latter category of documents is not evidence but submissions only (see Annexure 1).
The defence filed a bundle of documents. During the course of evidence specific documents from the defence bundle were tendered as separate exhibits in the trial.
6.4 The medical reports tendered
No medical evidence was called at trial because of the parameters of this trial.[55]
[55] Sections 5.1 – 5.3.
The defence consented to the tender of medical reports by the plaintiff in his bundles of documents, however, the purpose of the tender of those reports in these proceedings was limited. The defendant agreed to their tender to assist the plaintiff to explain his case to the court. However the defendant did not consent to the medical evidence being tendered to establish the truth of the content of the reports in the absence of the authors of those reports being called.[56]
[56] ts 271.
The medical reports were therefore not tendered for the truth of their content[57] but to enable the plaintiff to give his narrative of events, for example, what steps he took between 13 July 2016 and 12 February 2017 to meet the termination date.
[57] Section 79C Evidence Act 1906 (WA).
The medical reports were therefore not tendered to prove any of the following:
(i)as proof that the plaintiff's injuries (or any individual injury) were caused by his two workplace incidents;
(ii)as proof that the plaintiff was assessed, after 12 February 2017, as having a whole of person impairment of:
(a)7% in respect of his lumbar spine;
(b)5% in respect of his cervical spine;
(c)9% in respect of his scalp/hair;
(d)4% in respect of his tinnitus;
(e)7% in respect of his psychiatric injury;
(f)Or a total whole of person impairment assessment of 30%.[58]
[58] See exhibit 2, Form AMS 5, pages 146 - 149.
General observations on the credibility and reliability of the witnesses
It is necessary to make comments on the reliability and credibility of both Mr Armet and Mr Trigg as witnesses.
I paid careful attention to what each witness was saying and how the witness answered the questions. I made comprehensive notes in my benchbook at the time of the trial and I have a clear recollection of the manner in which each witness gave their evidence.
7.1 Mr Trigg
Mr Trigg presented as an honest witness who was doing his best to give accurate evidence to the Court. In so far as Mr Trigg's evidence concerned matters that were covered in the extensive email correspondence between him and Mr Armet, I have no hesitation in accepting Mr Trigg's evidence.
Where Mr Trigg's evidence concerned the detail of the advice given during the meeting of 2 February 2016, a critical meeting for the purposes of this trial, I approach that evidence with some caution. That is because Mr Trigg (and for that matter Mr Armet) was giving evidence four and a half years later about a meeting that went for between 30 minutes to just over an hour. Mr Trigg could not recall the duration of the meeting[59] and there is no contemporaneous note that records that information.
[59] ts 341.
For the reasons that will become apparent in section 10 that meeting covered an extensive number of documents, history of the plaintiff's incidents, his injuries and at least, in part, the investigations and specialists the plaintiff had seen at that point in time. The meeting covered complex advice under the Act regarding Mr Armet's entitlement to workers' compensation payments and the pathway to sue CFC at common law for damages. Mr Trigg was dealing with an unsophisticated client for whom English is not a first language, who complained of at least three injuries arising out of two incidents across two separate body systems. On any view, the meeting of 2 February 2016 dealt with a volume of issues that were factually dense and legally complex.
Mr Trigg's evidence about his memory of that meeting was that: 'I remember Mr Armet. It's not like I remember every client I see but I - I remember him in that initial meeting. I don't recall exactly what was discussed in that meeting at the time, apart from looking through my notes at a - at a later period'.[60]
[60] ts 312.
On Mr Trigg's own evidence, he does not independently recall precisely what was discussed in that meeting and relies upon his notes which he reviewed at a later time. To that extent, the detail of the contemporaneous notes made by Mr Trigg assume importance in my assessment of the reliability of Mr Trigg's evidence about the advice that was in fact given during the course of that 2 February 2016 meeting.
In making these remarks I stress that I found that Mr Trigg did his best to give honest and reliable evidence to the court. He did his best to accurately and reliably recall his dealings with Mr Armet.
Where Mr Trigg had made notes of what was in fact discussed with Mr Armet I accept his evidence without reservation.
However, to a considerable extent where there was no contemporaneous note of the detail of the advice given during the 2 February 2016 meeting, I find that at times Mr Trigg relied on the advice that he would have given as opposed to the advice he did in fact give. To this extent the lack of sufficiently detailed contemporaneous notes of the 2 February 2016 meeting in respect of the advice given on the plaintiff's election date and any extension to the termination date, leads me to approach the reliability of Mr Trigg's evidence in this regard with some caution.
7.2 Mr Armet
Mr Armet presented at trial as a plaintiff who undoubtedly felt aggrieved by the actions of SBL in a number of respects. That sense of grievance manifested itself in the sometimes explosive manner in which Mr Armet gave his evidence, especially at the commencement of the trial.
I recognise that having to represent himself in complex proceedings in a foreign language with his emotions running high was a challenging undertaking for Mr Armet.
I have had to be careful to factor into my assessment of witness credibility and reliability in respect of Mr Armet that he was giving evidence in a foreign language, he was representing himself, he had clear views on what was relevant and important, and what was irrelevant and therefore unimportant, to his case.
It was clear from the volatile manner in which Mr Armet gave his evidence, certainly at the beginning of the trial, that this was a very stressful experience for him and that was often reflected in outbursts of anger or through the use of swear words.
In my assessment of Mr Armet I have had to make allowances for those difficulties and for his outbursts in determining whether what he told the court was honest, accurate and reliable.
I bear in mind that the burden of proof lies on Mr Armet to establish negligence and also causation.
I find generally that Mr Armet sought to give an account of events as he remembered them to be and as he perceived them to be.
Mr Armet did not take notes of the information he gave Mr Trigg during the course of the meeting on 2 February 2016, nor of the advice he received. That is not a criticism of Mr Armet, but what it leads to is Mr Armet relying on his recollection of what was said, and what was not said, during the course of that meeting.
I also noted that where Mr Armet did not consider that a question or an issue had merit, or where it challenged his evidence on certain points, he dismissed it as being irrelevant to his narrative of events or unimportant. I refer, by way of example, to Mr Armet receiving the Form 36 by email from PCL on 31 February 2016 and his evidence that he did not give a 'Mickey Mouse' about the form.[61]
[61] ts 117.
To an extent, where Mr Armet was challenged on aspects of evidence that did not accord with his account, he tended to minimise or dismiss that challenge as irrelevant or unimportant. I factor this into account when making the relevant findings of fact.
In particular I approach Mr Armet's evidence about receiving, or best said, not receiving, correspondence sent by post, as opposed to by email, with some caution.
I do not accept that Mr Armet did not receive any correspondence at all by post.
I did not find Mr Armet's evidence about not receiving any written communication sent to his home address to be honest and reliable evidence.
I deal with individual pieces of correspondence separately in my findings below.
PART B
The statutory framework
8.1 The Workers' Compensation and Injury Management Act 1981
Mr Armet's entitlement to pursue a claim for common law damages against his employer for his injuries is governed by the provisions of pt IV, div 2, of the Act.
The operation of the statutory scheme in the Act was examined comprehensively in Armet v CFC, a decision involving an appeal by the plaintiff in these proceedings. The court considered the statutory scheme of subdiv 3 of div 2 of pt IV of the Act from which the following principles emerge:[62]
[62] Armet v CFC Consolidated Pty Ltd [2019] WASCA 165; [36] - [70]; [104] - [120]; Acebrook Corporation Pty Ltd v McEwan [2014] WASCA 162 [6] - [10].
1.Pursuant to s 93K(4), damages in respect of an injury can only be awarded if, among other things, the worker elects in the prescribed manner to retain the right to seek damages and the Director registers the election.[63]
[63] Acebrook Corporation Pty Ltd v McEwan [6].
2.By s 93L(2) of the Act, the right to elect only arises if (1) the worker and the employer agree that the worker's 'degree of permanent whole of person impairment' is at least 15% and as to whether or not the worker's 'degree of permanent whole of person impairment' is at least 25%, or (2) the whole of person impairment has been so assessed to be a percentage that is not less than 15%, and (3) the Director has, at the worker's written request, recorded that agreement or assessment.
3.By s 93H of the Act, the worker's 'degree of permanent whole of person impairment' is evaluated in accordance with s 146A and s 146C.
4.By s 93L(4) of the Act, where a claim has been made for compensation by way of weekly payments, an election to retain the right to seek damages cannot be made after the 'termination day'.[64]
[64] Acebrook [6]; Re White; Ex Parte Cunningham [2015] WASC 349 [16] (Re White).
5.The 'termination day' is defined in s 93M(1) to mean 'the last day of the period of one year after the day on which the claim for compensation by way of weekly payments is made', unless an extension of that time is granted by the Director under s 93M(4).[65]
[65] Acebrook [6]; Re White [17].
6.There are four circumstances in which an extension of the termination day may be granted under s 93M(4). They are, relevantly:[66]
[66] Acebrook [7].
(a)Where before the termination day, an approved medical specialist[67] has certified that the worker's condition has not sufficiently stabilised for a 'normal evaluation' of the worker's degree of whole of person impairment to be assessed, and recommends some extended termination date: s 93M(4)(a).
(b)The Director is satisfied that the employer has failed to comply with the notice requirements of s 93O: s 93M(4)(b).
(c)The Director is satisfied that an approved medical specialist requires, or has required, more time (more than the time provided for in s 93O(1)(d) - effectively six weeks[68]) to provide the documents required by s 146H in relation to the worker's degree of whole of person impairment: s 93M(4)(c).
(d)The Director is satisfied that:
(i)the worker, in accordance with the Regulations, has requested an assessment of the degree of their whole of person impairment within a specified time[69] which gives the medical specialist the opportunity to make the assessment and give the requisite documents under s 146H to the worker at least seven days before the termination day; and
(ii)the worker was not given, or it was not practicable to give, the requisite documents required by s 146H at least seven days before the termination day: s 93M(4)(d).[70]
8.2 Workers' Compensation and Injury Management Regulations
[67] An 'approved medical specialist' is a medical practitioner who has been designated as such by WorkCover WA by order published in the Government Gazette: s 146F(1) of the Act.
[68] See s 93O(1)(d) of the Act, read with reg 24.
[69] In the case of a 'normal evaluation', the specified time is effectively six weeks: s 93M(4)(d)(i) and s 93O(1)(d) of the Act, read with reg 24. In the case of a 'special evaluation', the specified time is seven weeks: s 93M(4)(d)(ii) of the Act.
[70] Acebrook [7].
Part 3A of the Regulations is headed 'Constraints on awards of common law damages'. It includes div 2 which is headed 'Division 2 - 2004 scheme'. Division 2 includes reg 22 ‑ reg 25.
The manner in which an election to retain the right to seek damages is prescribed in reg 22; the manner in which a worker may apply to extend the termination day under s 93M of the Act is prescribed in reg 23.
Regulation 22 provides:
22.Electing to retain right to seek damages
(1)An election under section 93K(4)(a) of the Act is made by completing an election form in the form of Form 34 in Appendix I and lodging it with the Director.
(2)Unless under subregulation (3) the Director refuses to register the election, the Director is to -
(a)register the election in a register kept for that purpose on the day on which the Director receives the election form; and
(b)complete the relevant section of the election form and give a copy of it to the worker and the employer.
(3)The Director may refuse to register the election if not satisfied that the worker has been properly advised of the consequences of the election.
Regulation 23 provides that a worker may apply for the Director to extend the termination day under s 93M of the Act. The application is made by lodging with the Director a completed application in the form of Form 35 in Appendix 1 and by providing to the Director, with the application form, anything that reg 23 requires to be provided with the application form.
For applications for extension under s 93M(4)(a) that requires, together with the application form, that the Director be provided with:
(i)a copy of the approved medical specialist's certificate certifying that the worker's condition has not stabilised to the extent required for a normal evaluation of the worker's degree of permanent whole of person impairment to be made in accordance with the WorkCover Guides as described in sections 146A and 146C of the Act; and
(ii)a copy of the approved medical specialist's recommendation of a day until which the termination day be extended; and
(iii)a copy of the approved medical specialist's report under section 146H(2)(c) of the Act;
The Director may, within the limits imposed by the Act, extend the termination day until a day that the Director, having regard to the approved medical specialist's recommendation, considers will give the worker a reasonable opportunity to make an election under section 93K(4)(a) of the Act.
8.3 The Amendments to the Act
Sections 93L(1) and s 93L(4) and s 93M were deleted by the Workers' Compensation and Injury Management Amendment (COVID‑19 Response) Bill 2020[71] (the amendment Bill).
[71] Section 7 deleted s 93L(1) and s 93L(4); s 8 deleted s 93M.
Those amendments came into force on 12 October 2020, the Monday after the evidence in this matter had concluded but before the closing addresses were given.
The practical effect of the amendments was to discontinue the common law termination day which the explanatory memorandum noted unfairly impacted on the common law rights of workers and was an additional and more restrictive statutory timeframe to the general limitation period that applies to common law claims for personal injury.[72]
[72] Workers' Compensation and Injury Management Amendment (COVID-19 Response) Bill 2020, explanatory memorandum.
The explanatory memorandum specifically noted that the Act as it stood prior to 12 October 2020 required an election to be made before a termination day and unless the election was made by the termination day the worker lost the right to pursue a claim for common law damages.
The explanatory memorandum specifically noted that the period in which an injured worker had to elect to pursue common law damages was shorter than the three year limitation period established in the Limitation Act 2005 (WA) for other kinds of personal injury.
Further, that some workers have experienced problems obtaining impairment assessments from approved medical specialists during COVID-19. The amendment Bill therefore discontinued the termination day requirements in the Act.[73]
[73] Workers' Compensation and Injury Management Amendment (COVID-19 Response) Bill 2020, explanatory memorandum.
Whilst the requirement remains that an employer register an election with WorkCover WA which certifies that the worker has a permanent impairment of not less than 15% as determined by an approved medical specialist, a worker now no longer has the added restriction of complying on or before the nominated termination date.
The abolition and deletion of the termination day was not made retrospective in its operation by the amendment Bill.
The courts have declared that in the absence of a clear statement to the contrary, an Act will be assumed not to have retrospective operation. In Maxwell v Murphy[74] Dixon CJ summarised the approach of the courts as follows:
The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events.
[74] Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261, 267.
The practical effect of the amendment Bill was to discontinue the termination day requirements in the Act from the date that those provisions came into effect, namely 12 October 2020. Prior to that date the requirement that a worker comply with the termination date remained.
Part IV div 2 subdiv 4, s 93T of the amendment Bill makes it clear that the effect of discontinuing the termination day from common law actions accruing before the commencement day of the amendment Bill is that it enables any worker whose termination day expired before 12 October 2020 to elect to retain the right to seek damages, subject to the Limitation Act 2005 (WA).
What this means is that the plaintiff would retain his action in negligence against CFC from 12 October 2020, subject to the provisions of the Limitation Act 2005 (WA). The plaintiff's cause of action arose on 18 March 2015 or, taking the second incident date as the relevant date, on 4 October 2015. The plaintiff is statute barred from taking any action in negligence against CFC after 4 October 2018.
There is no merit to the plaintiff's assertion that the legislative amendments retrospectively remove the termination date so as to enable him to make a claim against CFC.
PART C
The Facts
9.1 Overview
It is convenient to summarise here the facts in respect of the events occurring prior to the termination of the retainer between the parties on 11 May 2016. It is also convenient to make findings of fact in respect of those events in this part.
I summarise separately the facts, and my findings of fact, in respect of the tinnitus claim in Part D.
9.2. The instruction of Perth City Lawyers
On or around 20 November 2015 the plaintiff instructed Perth City Lawyers.[75]
[75] The costs agreement with PCL is dated 23 November 2015; the plaintiff signed that retainer and returned it by email on 3 December 2015; ts 187; Exhibits 3 and 4.
By the time the plaintiff instructed PCL he was suffering from five injuries: his back, his foot, his neck, his tinnitus and his hair loss. The injuries did not include the psychiatric injury because 'nobody told me I was getting crazy'.[76]
[76] ts 116.
The retainer with PCL ended on 1 February 2016, the day prior to the plaintiff meeting with, and instructing, SBL.
Whilst the retainer ended, on the plaintiff's account, on 1 February 2016, PCL continued to write to the plaintiff until 6 February 2016.
9.3 The written advice received from Perth City Lawyers
During the course of the retainer with PCL, Denise Chesworth, solicitor from PCL, provided the plaintiff with detailed advice about his workers' compensation claim and his potential claim at common law against his employer. That advice is contained in letters of 23 November 2015, 29 January 2016 and in an email of 1 February 2016. Subsequent to the termination of PCL's retainer with Mr Armet, Ms Chesworth wrote a further email dated 6 February 2016.
The defendant argued that the written correspondence from PCL is significant in this case. The defendant says that that correspondence demonstrates that the plaintiff had received written advice on a number of aspects concerning his election for common law damages including what the termination date signified, when the (initial) termination date was (30 July 2016) and the possibility, if not probability, that an extension of time would be required to the plaintiff's initial termination date.
The defendant says that by reason of the advice received from PCL the plaintiff knew and understood these issues at the time he met with Mr Trigg on 2 February 2016 and at the time he was referred to, and saw, Dr Fairhurst on 8 and 12 February 2016 respectively.
It is therefore instructive to set out the relevant extracts of the advice contained in the correspondence from PCL.
9.3.1 The letter of 23 November 2015
The relevant extract from that letter is:
Common Law/Negligence Claim Against your Employer
You may have potential right to sue your employer at common law for damages, which includes compensation for general damages (pain and suffering and loss of amenities of life), past economic loss, future economic loss, past and future medical expenses, travel expenses and gratuitous services.
If you elect to pursue a common law claim employer, you will eventually be required to abandon your workers' compensation entitlements (ie weekly payments, treatment and vocational rehabilitation).
Unfortunately there are significant restrictions on the capacity of an injured worker to bring an action for negligence against an employer. Such a claim for damages negligence will only succeed if:
(a)Negligence - you have to prove that injury was caused through negligence or fault of your employer. You can demonstrate that the injury was caused through negligence or fault of all employer [sic] such as by failing to provide a safe system of work safe machinery.
(b)Threshold - demonstrate your injury has caused significant damages. Significant damages is defined as a minimum of 15% permanent loss of use of your body as a whole or whole person impairment ('WPI'). A medical report from an Approved Medical Specialist (AMS) stating the degree of impairment and election form must be lodged and registered at WorkCover within 12 months of the date you lodged your workers' compensation claim form.
Your termination date (latest date you can elect to make a common law claim) will lapse 9 months after either the insurer agrees to accept liability or after an order is made by WorkCover that the insurer accepts liability.
An assessment of 15% permanent loss of use mental capacity [sic] is required to establish a 15% WPI.
(c)Proceedings are commenced in the District Court within 3 years of the date of injury but only after the Director has given written notice that your medical report and election form have been registered.
At this stage it is not possible for us to determine whether you sustained significant injuries (15% WPI). If you wish us to attempt to preserve your right to pursue a negligence claim, we will need to obtain medical report from an Approved Medical Specialist. You will be responsible for the cost of the report which may be recovered from insurer when your claim is finalised … You should be aware that a District Court Judge will revisit the whole person impairment at trial and it may be determined by the Judge that do not meet the threshold to proceed with the claim. In those circumstances you may be subject to an adverse order for costs.
The plaintiff accepted that he had seen the letter sent to him from PCL dated 23 November 2015.[77]
29.5 The 'but for' test
In the case of an omission, such as the present case where the nub of the complaint is a failure to advise for a period of approximately four months, leading to a compression of time by 30%, the question of causation is answered by reference to what would or would not have happened had the omission not occurred?[429]
[429] Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408, 420.
The question is necessarily hypothetical. It involves an evaluation of circumstances which did not happen. The court may infer causation by reference to the objective facts and probabilities.[430] Conclusions should only be reached as far as possible on the contemporary materials, objectively established facts and the apparent logic of events. If the evidence when viewed in its totality suggests that the acts of omissions of the defendant would have made no difference to the plaintiff's course of action, the defendant has not caused the harm which the plaintiff has suffered.[431]
[430] Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434 [25], [44]; Falkingham v Hoffmans (a firm) [2014] WASCA 140; (2014) 46 WAR 510 [41]; see Vaughan J, AVWest Aircraft [154] - [155].
[431] AVWest Aircraft [157] - [160] (Vaughan J).
Consideration of the plaintiff's case requires the court to engage with an uncertain past hypothetical - what would have occurred but for SBL's breach?[432] It is necessary to form an estimate of the likelihood that the hypothetical situation would have occurred.[433]
[432] Wallace [14] - [16].
[433] Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638, 639.
The standard of proof is the balance of probabilities.
29.6 Initial observations
At first blush seven months appears to be ample time for the plaintiff to elect to pursue his employer at common law. In a simplistic sense, the answer to the question of whether the plaintiff was deprived by the defendant's negligence of the opportunity to make his election, the answer is no.
However, the determination of this question cannot be resolved by a simplistic application of the fact that seven months remained before the election had to be made.
The question of whether the compression in time meant that the plaintiff lost so much of his opportunity to meet the election criteria that it may be said that it deprived him of a reasonable opportunity to meet his election criteria is not to be assessed in a vacuum. It needs to be assessed having regard to all of the circumstances
In answering that question I need to have regard to the evidence of Mr Armet's personal circumstances at the time: see section 5.4 which included that Mr Armet complained of, and was investigating, a multiplicity of injuries.
In respect of this latter aspect I need to be careful to consider the question of causation confined to the plaintiff's injuries that the defendant knew, or ought reasonably to have known, during the period of the retainer were work-related injuries. It cannot be the position that an injury of which the defendant was not reasonably on notice during the retainer as being a work-related injury, and which was not part of the mix of injuries that formed part of a risk of harm that was foreseeable, could then be taken into account in determining factual causation.
In assessing the hypothetical, but-for SBL's negligence, what would the position have been, I look at all of the circumstances as established by the objective facts and the logic of events as I find them to be. I consider what would the position have been had SBL informed the plaintiff of the extension to his termination date.
In making this assessment I have considered:
(i)The evidence of the plaintiff as to what he did in fact do following receipt of the 12 July 2016 letter in his efforts to meet his termination date: as to which see summary at section 24.
(ii)The evidence of the steps the plaintiff took during the course of the retainer in pursuing medical reports to establish a link between his tinnitus and his workplace: as to which see section 22.2.
(iii)The role of other matters that were affecting the plaintiff or otherwise with which he was engaged at the time; as to which see a summary of the plaintiff's evidence on this point at section 30.
(iv)The stage of medical investigation that had been reached between 12 July 2016 and 12 February 2017 in respect of those injuries that were, to the defendant's knowledge during the period of the retainer, compensable or potentially compensable injuries;
(v)The evidence and the absence of evidence regarding the steps taken (or not taken) by any of the approved medical specialists instructed by Mr Armet in respect of his compensable injuries (and all of his injuries).
The plaintiff's evidence about causation
The plaintiff's evidence in summary was that it was impossible for him to get his whole of person impairment assessment in before the expiry of the termination date. When asked why it was impossible the plaintiff answered: 'Because if it was possible I would have done it'.[434] That is not evidence of the impossibility of his task, but evidence of the plaintiff's belief that the compression of time made his task, in his opinion, impossible.
[434] ts 514, closing submissions.
The plaintiff gave evidence that there were multiple reasons for his inability to meet his termination date. Firstly, in that period of time, the plaintiff had had other issues he was dealing with, not just trying to get his whole of person impairment assessments in respect of his injuries.[435]
[435] ts 241.
For example, the plaintiff said that SBL had let his tinnitus conciliation claim 'die' and it had to be re-filed. As a consequence of that, time frames for the conciliation and arbitration were pushed back and that led to the plaintiff dealing with his arbitration for the tinnitus claim in February 2017 when it would otherwise have been listed earlier.[436]
[436] ts 251.
The second reason for the failure to elect was because at the time, the plaintiff was unwell: he was in physical pain and was experiencing neuropathic pain.[437] He gave evidence that he had been prescribed lorazepam to treat his anxiety and sleep disorder and duloxetine to treat his neuropathic pain and to calm him down.[438]
[437] ts 244.
[438] ts 242; Exhibit 6.
Other than giving evidence of him being unwell, the plaintiff did not give details as to how his health prevented him from taking the steps to make his election on time, or how it delayed or impacted on him being able to take those steps.
The third reason for the failure to elect was financial. The plaintiff did not always have the money to pay for:
(i)all the necessary medical appointments and expenses including going to the GP and getting a referral to a specialist, the costs of having blood tests, biopsies, MRIs, ultrasounds, audiology appointments;[439]
(ii)his prescribed medications;[440]
(iii)his plantar fasciitis treatment (21 sessions costing $2,500); and
(iv)his special shoes and strapping for his feet.[441]
(v)The financial cost of running proceedings appears to have also been a factor, however the plaintiff did not expand on this aspect in any detail.[442]
[439] ts 263.
[440] ts 264.
[441] ts 266.
[442] ts 265.
The fourth reason was the time involved in having treatment for the plaintiff's plantar fasciitis was a factor.
The fifth factor was that during that period the plaintiff was required to attend appointments with other doctors at GIO's insistence. This included going to an appointment with Dr Watson, a neurosurgeon, on 1 November 2016 and having to see Dr Low on 4 February 2017. The plaintiff attended other appointments with Dr Low, however, those appointments were not within the 13 July 2016 to 12 February 2017 period and so I disregard them for the purposes of this analysis.
The sixth factor, although not articulated directly in this manner, was that the plaintiff was dealing with multiple specialists all of whom were responsible for an assessment of the plaintiff's whole of person impairment in respect of different injuries: Mr Narula for the neck, the foot and the lumbar spine (although he was 'overseeing' the other specialists in this regard); Dr Gebauer for the hair loss injury and Dr Wallace for the tinnitus injury.
Given that the plaintiff had not consulted with Dr McCarthy until October 2017, I do not include in this evaluation the steps taken by the plaintiff later with respect to his psychiatric condition.[443]
[443] ts 258.
It was implicit in this sixth factor that the plaintiff was required to make appointments with these different specialists and have further different appointments scheduled for testing in respect of those differing specialists.
The seventh factor was that by reason of the Christmas break from mid-December 2016 until the end of the first week of January 2017 there were no medical professionals available, 'everything shuts down and you cannot see any doctors'.[444] In essence, the plaintiff's evidence in this regard was the seven months he had left were in effect six months by reason of the Christmas break.
[444] ts 247.
There was no evidence led by the plaintiff as to what steps he took to book appointments during this period and which specialists he could not see by reason of the Christmas break; it was a broad proposition in evidence.
In summary, the plaintiff said he did his best to comply with the election date but he could not make it.
Conduct of the trial in respect of the evidence as to causation
Whilst no medical evidence was adduced at trial and no medical experts called to give evidence, it is necessary to say something about the medical reports that are contained in Exhibit 2. I have used those medical reports in the following ways:
(i)to assist me in determining when the plaintiff saw a particular doctor;
(ii)to assist me in determining when the plaintiff underwent testing for a particular injury;
(iii)to assist me in determining when a particular doctor first wrote his report indicating what the whole of person impairment percentage for that injury was;
(iv)in respect of the Forms AMS 1, to assist me in determining when the plaintiff formally issued the requests of the individual approved medical specialists for the whole of person impairment assessments in respect of each injury or, in respect of Mr Narula, the back, the neck and the foot injuries.[445]
[445] 3 Forms AMS 1 issued on 5 October 2016 in respect of the lumbar spine (Exhibit 2, page 140 - 141); foot, heel pain and right leg (Exhibit 2, pages 142 - 143); and the Neck/Spine injury (Exhibit 2, pages 144 - 145).
(v)to assist me in determining when the report on Evaluation of the Degree of Permanent Impairment (Form AMS 5) and when the Certificate of the Degree of Permanent Impairment (Form AMS 6) together with Mr Narula's report were issued.[446]
[446] Form AMS 5 (Exhibit 2, pages 146 - 149); Form AMS 6 (Exhibit 2, pages 150 - 151); Report of Professor Narula dated 12 February 2018 (Exhibit 2, pages 152 - 168).
(vi)To assist me in respect of Mr Narula's final report (issued on 12 February 2018) to ascertain which injuries comprised part of Mr Narula's aggregated whole of person impairment assessment.
(vii)It is convenient to note here that Mr Narula's final whole of person impairment assessment for all of Mr Armet's injuries is stated to be 30%. The aggregated 30% comprised individual whole of person impairment assessments in the following amounts:[447]
[447] Using the language of Professor Narula’s report of 12 February 2018; Exhibit 2, pages 146 - 151.
(a)Lumbar spine - 7%;
(b)Cervical spine - 5%;
(c)Scalp/Hair 9%;
(d)Tinnitus/hearing 4%;
(e)Psychiatry 7%; and
(f)Plantar fasciitis 3%.
The plaintiff's evidence about Mr Narula's final report[448]
[448] Exhibit 2, pages 152 - 168.
Mr Narula's final report on the degree of permanent impairment (Form AMS 5) is dated 12 February 2018, a year after the deadline for the common law termination date.
Whilst Mr Narula was instructed to provide the whole of person impairment assessments for the plaintiff's back, neck and foot injuries, the plaintiff gave evidence that Mr Narula's role was also that of the 'main assessor.'
The plaintiff explained that he had asked Mr Narula in 2016 if he wanted to 'be the lead and make the WPI' and he told me yes.[449] The plaintiff went on to say:[450]
He's the guy supervising all of the others also. So he was waiting for the other ones to come forward. I mean, yes. I- I am not have to give Professor Narula orders as to what he has to do and when he has to do it. Yes.
[449] ts 305.
[450] ts 303.
The plaintiff's explanation for Mr Narula being nominated to be the lead assessor was because the WorkCover Guides said that in the case of a complex injury where different AMS are required to assess different body systems, a 'lead assessor' should be nominated to coordinate and calculate the percentage of the final degree of permanent impairment resulting from the individual assessments.[451]
[451] ts 305; WorkCover Guidelines 2016, par 1.24.
The plaintiff's response in cross-examination to a question that Mr Narula did not issue the Forms AMS 5 and 6 until 12 February 2018 agreed and said:[452]
Of course, he had to wait for the other ones to come forward. He had to wait for the other specialists to provide him with their WPI.
[452] ts 303.
The plaintiff cannot give admissible evidence about why in fact Mr Narula did not issue the Forms AMS 5 and 6 until 12 February 2018.[453]
[453] ts 304.
I therefore treat the plaintiff's evidence in this respect to be the plaintiff's understanding as to why Mr Narula's report was not issued until a year after the termination date had expired.
The WorkCover Guidelines
It is convenient here to consider the WorkCover Guidelines.
The starting point is s 146R of the Act which provides that WorkCover WA may issue directions with respect to the evaluation of degree of impairment: s 146R(1) Act.
Section 146R(4) of the Act provides that s 41, s 42, s 43 and s 44 of the Interpretation Act 1984 apply to the directions as if they were regulations.
Section 43(1) of the Interpretation Act 1984 provide that:
Subsidiary legislation shall not be inconsistent with the provisions of the written law under which it is made, or of any Act, and subsidiary legislation shall be void to the extent of any such inconsistency.
Section 44(1) provides that:
Words and expressions used in subsidiary legislation shall have the same respective meanings as in the written law under which the subsidiary legislation is made.
The Guidelines do not have the force of a legislative provision. The Guidelines must be read subject to, and consistently with, the overarching legislation pursuant to which they are published.
To the extent that they are inconsistent (if they are) with the written provisions of the Act regarding the termination date, the Act takes precedence.
There is nothing in the Act that says that the Guidelines take precedence over the express statutory provisions of the Act and to so find would be to attribute to the Guidelines the force of binding legislation, which they are not.
In so far as the Guidelines provide that a lead assessor 'should' be nominated, I note that the language of that paragraph is not mandatory but recommended. To the extent that there is a recommendation that a lead assessor should be nominated in complex cases, this Guideline does not usurp, replace or take precedence over the express provisions of the Act that required that the plaintiff's election be made in the prescribed manner within the prescribed time frame.
In reading the Guidelines consistently with, and subject to, the overarching provisions of the Act meant here that the plaintiff was bound to meet his election criteria in the prescribed manner and within the prescribed time frame: s 93L and s 93M of the Act. That the Guidelines recommended that a lead assessor should be nominated does not in any way obviate the plaintiff's obligation to comply with s 93L of the Act.
Absence of evidence from Mr Narula
Mr Narula was not called to give evidence in these proceedings.
The Court therefore did not hear from Mr Narula as to why he did not complete the overall whole of person impairment assessment for all of Mr Armet's injuries prior to the termination date.
Neither did the Court hear why Mr Narula did not submit the whole of person impairment assessment in respect of the back, foot and neck injuries in respect of which he was the approved medical specialist prior to the termination date.
I stress that this is no criticism of Mr Narula in any way. I make these observations because he was not called to give evidence at trial by the plaintiff.
The plaintiff was informed that he had the onus of proving why he claimed that the compression of time he had by reason of the defendant's negligence meant that he was deprived of a reasonable opportunity to meet his election criteria in the prescribed way and on time.
The plaintiff was expressly given the opportunity to call Mr Narula to give evidence in respect of causation; the plaintiff declined to do so.[454]
[454] ts 532 - ts 535.
Accordingly, I must assess the evidence as it stands at trial.
I must not speculate on the reasons why Mr Narula did not submit the whole of person impairment assessments in respect of the injuries in respect of which he was the specialist (the neck, the back and the foot) prior to the termination date.
The plaintiff's evidence at trial was that it was not for him give Mr Narula orders as to what he has to do and when he has to do it.[455]
[455] ts 303.
As a result of the plaintiff's decision not to call Mr Narula at trial there is no evidence:
(i)of what took place between 5 October 2016 and 12 February 2017;
(ii)of any communications between Mr Armet and Mr Narula between the 5th of October 2016 and 12 February 2017;
(iii)as to whether it was possible for Mr Narula to have issued the whole of person impairment assessment for the neck, foot and back injuries prior to the termination date;
(iv)as to whether it was a reading of the recommendation in the Guidelines that a lead assessor should be nominated, and the wait for the other specialists' reports to be completed, as being the reason why the final whole of person impairment report could not be completed by the termination date or whether it was for another reason.
In the absence of evidence from Mr Narula I do not speculate on the reasons why he did not submit his individual whole of person impairment final assessment (Form AMS 5) within the prescribed time nor why he did not submit the overall whole of person impairment assessment within the prescribed time.
The investigations into the plaintiff's injuries
35.1 The hair loss injury
I have concluded at section 21 that the hair loss injury was not an injury that the defendant could reasonably have known during the period of the retainer to be an injury causally connected to the plaintiff's workplace accident/s. To that end it does not comprise part of the mix of injuries that can be taken into account in determining causation.
For the reasons I have explained at section 21.2 even if I am wrong about this, and the hair loss injury was an injury that the defendant ought to reasonably have known was causally connected to the plaintiff's work during the period of the retainer, the defendant's negligence cannot be said to have been causative of any loss by the plaintiff in respect of the hair loss injury.
I reach this conclusion because as at 13 September 2016 the plaintiff had taken the steps that he needed to take in order for his hair loss injury to be investigated and for Dr Gebauer to have provided a report on that injury. In that report, Dr Gebauer postulated on the link between the plaintiff's hair loss and the plaintiff's back injury and subsequent pain killing medication.[456]
[456] Exhibit 2, pages 112 - 113.
I conclude from Dr Gebauer's report of 13 September 2016 following the investigations the plaintiff had into his hair loss that it was open to the plaintiff to have issued the Form AMS 1 to Dr Gebauer following his report of 13 September 2016.[457]
[457] Exhibit 2, pages 112 - 113.
That the plaintiff did not issue the formal request to Dr Gebauer (the Form AMS 1) for the whole of person impairment assessment in respect of the hair loss injury until 22 March 2017 appears to be based on the plaintiff's understanding that there needed to be six months between his first and subsequent assessments with Dr Gebauer.[458]
[458] ts 530 - 531.
Where and why the plaintiff understood that this was the case is not clear. It was not a matter that was clarified in evidence.
Hypothetically it may be the case that the plaintiff was referring to a letter written by SBL in which SBL advised that Dr Fairhurst had assessed the back injury to not have yet reached maximum medical improvement and that, in those circumstances, there needed to be six months between reviews by the approved medical specialist.[459]
[459] Exhibit 24, letter of 29 February 2016.
Alternatively, equally hypothetically, it may be that the plaintiff misunderstood the meaning of section 93N of the Act such that he waited for six months before issuing Dr Gebauer with the Form AMS 1.
In the absence of evidence as to why this was I must not speculate on the reasons why the plaintiff understood that there needed to be six months between the first review by Dr Gebauer and the issue of the Form AMS 1.
In the circumstances, I am not satisfied on the evidence led at trial that there remained insufficient time between 13 September 2016 and 12 February 2017 for Dr Gebauer's whole of person impairment assessment in the prescribed format (Form AMS 5) to be issued.
The whole of person impairment assessment for the plaintiff's hair loss/scalp injury was assessed by Dr Gebauer to be 9%.
Even if others determine that the hair loss injury comprised a compensable injury of which the defendant knew or reasonably ought to have known during the period of the retainer it cannot be said that the defendant's negligence contributed to the plaintiff's failure to meet his election criteria on time with respect to the hair loss injury.
35.2 The tinnitus injury
I have concluded that the tinnitus injury was an injury that the defendant knew Mr Armet complained was work-related during the period of the retainer.
I take into account that Dr Wallace's report on Mr Armet's tinnitus injury was completed on 8 September 2016,[460] the date that Mr Armet formally issued the Form AMS 1 to Dr Wallace.[461]
[460] Exhibit 2, pages 106 - 109.
[461] Exhibit 2, pages 104 - 105.
That report provided an estimated whole of person impairment assessment of 4% for the tinnitus injury.[462]
[462] Exhibit 2, page 109.
The whole of person impairment assessment in respect of the tinnitus injury was therefore available to be issued prior to the termination date.
It cannot be said that the defendant's negligence contributed to the plaintiff's failure to meet his election criteria on time with respect to the tinnitus injury.
35.3 The psychiatric injury
In respect of the psychiatric injury, the plaintiff did not approach Dr McCarthy for a whole of person impairment assessment until 9 October 2017, nearly eight months after the termination date had expired.
The plaintiff did not issue the Form AMS 1 to Dr McCarthy until 9 October 2017.[463]
[463] Exhibit 2, pages 130 - 131.
Dr McCarthy's report and his whole of person impairment assessment for the psychiatric injury was not provided until 17 November 2017.[464] Dr McCarthy whole of person impairment assessment for the psychiatric injury was 7%.
[464] Exhibit 2, pages 132 - 139.
The plaintiff cannot rely on this injury for inclusion into his final whole of person impairment assessment because it was not an injury of which the defendant had notice during the period of the retainer.
Secondly, the plaintiff cannot complain that the defendant's negligence caused him to miss an opportunity to meet his election criteria in circumstances where no steps had been taken to investigate this injury formally until eight months after the termination date had passed.
It cannot be said that the defendant's negligence contributed to the plaintiff's failure to meet his election criteria on time with respect to the psychiatric injury.
35.4 The back, the foot and the neck injury
I take into account that Dr Fairhurst had assessed as a preliminary basis on 12 February 2016 that Mr Armet's whole of person impairment assessment for his back was 6% and his foot was nil.[465]
[465] Exhibit 22.
SBL had written to Mr Armet during the course of the retainer, by letter dated 29 February 2016, to advise that a second review had been booked for September 2016.
Upon the termination of the retainer and by email dated 11 May 2016[466] Mr Trigg wrote to Mr Armet to advise that that appointment with Dr Fairhurst would be cancelled.
[466] Exhibit 1, page 373 - 374.
I note that it would have been open to Mr Armet to himself contact Dr Fairhurst after 13 July 2016 to seek a final whole of person impairment assessment in respect of his back and foot injuries (and to issue a Form AMS 1 to Dr Fairhurst in respect of his neck injury). Dr Fairhurst had previously examined Mr Armet (in respect of his back and foot, not his neck) and Dr Fairhurst had demonstrated an ability to complete the prescribed paperwork in an expeditious manner.
Mr Armet chose to engage Mr Narula to provide the whole of person impairment assessments for his back, foot and neck injuries. The evidence on the documents before the Court suggests that Mr Narula saw Mr Armet on 2 August and again on 5 October 2016, when Mr Armet formally issued the Forms AMS 1 in respect of the back, foot and neck injuries.
There is no evidence before the Court of any communication between Mr Armet and Mr Narula between 5 October 2016 until the termination date on 12 February 2017. There is evidence that Mr Armet saw Mr Narula on 14 February 2017, two days after the termination date had expired and again on 29 March 2017 and 9 August 2017.
There is no evidence as to what was happening with Mr Narula and the reasons why he was unable (if this is in fact the case) to submit his assessments for the neck, the back and the foot prior to 12 February 2017.
The plaintiff declined to call Mr Narula to give evidence.
Accordingly, I must assess the evidence as it stands at trial.
Findings on causation
Considering all of the evidence about causation, I am not persuaded on the evidence led at trial that the plaintiff has discharged the onus of proving that the defendant's breach and the consequential compression of time caused the plaintiff's failure to make his election on time.
I reach this conclusion for the following combination of reasons, bearing in mind that that the plaintiff bears the onus of proving causation on the balance of probabilities:
(i)The plaintiff knew the importance of the termination date: it was, on his own evidence, 'the D-Day'.
(ii)As at the end of the retainer with the defendant, 11 May 2016, the plaintiff's focus was evidently on his tinnitus claim, gathering supportive evidence and ensuring that the tinnitus conciliation application was filed. There is a plethora of correspondence up to 11 May that corroborates that conclusion.
(iii)Up until 11 May 2016 it would be difficult to see how the plaintiff would have been in a position to do any more than what he was doing with respect to his tinnitus claim.
(iv)There was little evidence led at trial as to what the plaintiff was focused on after the 11 May to 13 July 2016. This is not a criticism of the plaintiff but a mere observation of the focus of the evidence at trial.
(v)The plaintiff's evidence that he had other issues he was dealing with during the period 13 July 2016 to 12 February 2017. These matters included attending medical appointments, having treatment for his plantar fasciitis, attending to his arbitration in respect of his tinnitus injury and the other matters about which the plaintiff gave evidence.
(vi)For the reasons given in section 24.2 the plaintiff did take the necessary steps to have all necessary investigations conducted in respect of his tinnitus injury by 13 September 2016. As such, the defendant's negligence cannot said to be causative of the plaintiff's failure to meet his election criteria in respect of that injury.
(vii)For the reasons given in sections 11.3 and 21.2 the hair loss injury is not an injury of which the defendant knew or ought reasonably to have known during the period of the retainer was causally linked to the plaintiff's work. As such, the defendant's negligence cannot be said to be causative of the plaintiff's failure to meet his election criteria in respect of that injury.
(viii)If I am wrong about that, the plaintiff had taken all necessary steps to investigate that injury by 13 September 2016. The plaintiff has failed to explain why the Form AMS 1 was not issued to Dr Gebauer until 22 March 2017. As such, the defendant's negligence cannot be said to be causative of the plaintiff's failure to meet his election criteria in respect of that injury.
(ix)For the reasons given in section 11.3, the psychiatric injury was not an injury that I have concluded comprised a work-related injury that the defendant knew or reasonably knew the plaintiff was suffering during the period of the retainer.
(x)If I am wrong about that, the plaintiff did not first see Dr McCarthy until 9 October 2017, eight months after the termination date had expired. As such, the defendant's negligence cannot be said to be causative of the plaintiff's failure to meet his election criteria in respect of that injury.
(xi)For the reasons given in section 24.3, in respect of the back, foot and neck injury, Mr Armet had issued the Form AMS 1 to Mr Narula on 5 October 2016.
(xii)There is no evidence before the Court from Mr Narula as to whether it was possible for Mr Narula to have prepared a whole of person impairment assessment for the back, neck and foot injuries prior to the termination date.
(xiii)There is no evidence led at trial from Mr Narula to explain why his report was completed 12 months after the termination date.
(xiv)The plaintiff did not lead evidence that he had impressed upon Mr Narula the need for the whole of person impairment assessments to be obtained prior to the termination date. The plaintiff's evidence positively was that it was 'not his place' to tell Mr Narula 'what to do and when to do it'.[467]
(xv)The only evidence as to why Mr Narula did not finalise the overall whole of person impairment assessment until 12 February 2018 came from the plaintiff.
(xvi)Even taking the plaintiff's explanation that Mr Narula's report was not able to be completed until 12 February 2018 because of the recommendation in the Guidelines that a lead assessor should be nominated, a recommendation in the Guidelines does not exempt the plaintiff from compliance with his statutory obligation of filing his election criteria prior to his termination date.
(xvii)The plaintiff had seen Dr Fairhurst in respect of his back and foot injuries. The plaintiff could have arranged for a further review by Dr Fairhurst in respect of the back and the foot injury in or around September 2016. The plaintiff could have issued a Form AMS 1 to Dr Fairhurst in respect of the neck injury. The plaintiff chose not to do so.
PART I
[467] ts 303.
Conclusion
The plaintiff carries the burden of proving that the defendant's negligence was a necessary condition of, or materially contributed to, the plaintiff's failure to elect on time. Said differently, that but for the defendant's negligence, the plaintiff's failure to elect would not have occurred.
The plaintiff has failed to discharge the burden of proving that the defendant's negligence caused the plaintiff to lose a reasonable opportunity to make his election on time.
The evidence shows that Mr Armet had had all necessary investigations into his tinnitus injury by 8 September 2016 and by 13 September 2016 in respect of his hair loss injury (assuming, for the purposes of this exercise, that it was a compensable injury).
The psychiatric injury was not an injury that the defendant knew or ought reasonably to have known about during the period of the retainer and does not comprise part of the assessment of causation (nor of negligence). Even if it did, the fact that Mr Armet took no steps in respect of that injury until eight months after the termination date means that that injury cannot be said to be causative, even in part, of the plaintiff's loss. That the plaintiff may have chosen to wait until he had seen the psychiatrist, eight months after the termination date had passed, before the aggregated whole of person impairment assessment could be completed, was a choice that he made.
There is an absence of evidence as to what happened between 5 October 2016 and the termination date in respect of his back, foot and neck injuries; Mr Armet had issued the Forms AMS 1 to Mr Narula in respect of those injuries on 5 October 2016.
The silence as to what happened between 5 October and the termination date, the absence of evidence from Mr Narula, the evidence that does exist that the plaintiff did not press Mr Narula, that 'it was not for him to tell Mr Narula what to do and when to do it' lead me, in combination, to conclude that the plaintiff has fallen short of discharging the burden of proof.
That is, I am not satisfied on the evidence having regard to the burden of proof that the plaintiff has established that the defendant's neglect caused his loss.
I therefore dismiss the plaintiff's claim.
Final orders
Plaintiff's claim dismissed.
I will hear the parties as to costs.
ANNEXURE 1
SCHEDULE OF THE PLAINTIFF'S DOCUMENTS - EXHIBIT 1
| NO. | PAGE NUMBER(S) | DESCRIPTION | IN EVIDENCE/ NOT IN EVIDENCE |
| 1 | 1 - 36 | Affidavit of Stephen Armet and Submissions dated 04/08/2020 | Not in evidence |
| 2 | 37 - 49 | Print outs from | Not in evidence |
| 3 | 50 - 56 | WorkCover Guides and Documents | Not in evidence |
| 4 | 57 - 76 | Print outs from | Not in evidence |
| 5 | 77 - 103 | The Law Society Ethical & Practice Guidelines | Not in evidence |
| 6 | 104 - 129 | Schedule of Mr Armet’s Expenses | Not in evidence |
| 7 | 130 - 134 | Draft Chronology | Not in evidence |
| 8 | 135 - 172 | Documents in Evidence | In evidence |
| 9 | 173 - 175 | Draft Chronology | Not in evidence |
| 10 | 176 - 225 | Documents in Evidence | In evidence |
| 11 | 226 - 228 | Draft Chronology | Not in evidence |
| 12 | 229 - 293 | Documents in Evidence | In evidence |
| 13 | 294 - 298 | Draft Chronology | Not in evidence |
| 14 | 299 - 326 | Documents in Evidence | In evidence |
| 15 | 327 - 330 | Draft Chronology | Not in evidence |
| 16 | 331 - 395 | Documents in Evidence | In evidence |
SCHEDULE OF THE PLAINTIFF'S DOCUMENTS - EXHIBIT 2
| NO. | PAGE NUMBER(S) | DESCRIPTION | IN EVIDENCE/ NOT IN EVIDENCE |
| 1 | 1 - 5 | Affidavit of Stephen Armet dated 10/08/2020 and Annexure Cover Sheet | Not in evidence |
| 2 | 6 - 2 4 | Documents in Evidence | In evidence |
| 3 | 25 - 29 | To Whom It May Concern Letter | Not in evidence |
| 4 | 30 - 36 | Documents in Evidence | In evidence |
| 5 | 37 - 38 | To Whom It May Concern Summary | In evidence |
| 6 | 39 - 85 | Chronological Statement to the Judge | Not in evidence |
| 7 | 86 - 103 | Annexure Cover Sheet and Miscellaneous Documents | Not in evidence |
| 8 | 104 - 125 | Documents in Evidence | In evidence |
| 9 | 126 - 127 | Print outs re Naproxen - Induced Lichen Planus | Not in evidence |
| 10 | 128 - 168 | Documents in Evidence | In evidence |
| 11 | 169 - 201 | Court Documents and Correspondence re Proceedings | Not in evidence |
| 12 | 202 - 214 | Chronological Statement to the Judge | Not in evidence |
| 13 | 215 - 240 | Affidavits, Court Documents and Correspondence re Proceedings | Not in evidence |
| 14 | 241 - 245 | Not Provided | Not Provided |
| 15 | 246 | Letter GIO to Mr Armet dated 18/03/2019 | In evidence |
| 16 | 247 - 307 | Affidavits, Documents and Correspondence re Proceedings | Not in evidence |
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
KM
Associate to Judge Shepherd
23 SEPTEMBER 2021
- AGLC
- Armet v Stephen Browne [No 2] [2021] WADC 88
- Case
- [2021] WADC 88
- Decision Date
CaseChat Overview and Summary
The court needed to decide whether the defendant's negligence, specifically the delay in advising the plaintiff about the termination date, was a necessary condition of, or materially contributed to, the plaintiff's failure to elect on time. This required an analysis of the evidence to establish whether the plaintiff had discharged the burden of proving that the defendant's negligence was a causative factor in his loss.
The court found that the plaintiff had not discharged the burden of proving that the defendant's negligence caused his loss. The plaintiff had multiple reasons for his inability to meet the election deadline, including health issues, financial constraints, and the time involved in treatment. However, the evidence did not support the conclusion that the defendant's negligence was a necessary condition or a material contributor to the plaintiff's failure to elect on time. The plaintiff's decision to wait until after the termination date to see a psychiatrist and complete the required assessments further undermined the causation argument. The court concluded that the plaintiff had fallen short of discharging the burden of proof, and thus, the plaintiff's claim was dismissed.
The final orders of the court were to dismiss the plaintiff's claim, with the court reserving the right to hear arguments regarding costs.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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