Armitage v Tenix Defence Pty Ltd - [2008] WADC 150

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: ARMITAGE -v- TENIX DEFENCE PTY LTD [2008] WADC 150

CORAM: MARTINO DCJ

HEARD: 21 & 22 AUGUST, 4 SEPTEMBER 2008

DELIVERED : 14 OCTOBER 2008

FILE NO/S: CIV 1356 of 2007

BETWEEN: JOHN PATRICK ARMITAGE
Plaintiff
AND
TENIX DEFENCE PTY LTD
Defendant

Catchwords:

Workers' compensation - Assessment of degree of permanent whole of person impairment
Practice and procedure - Request by the defendant for the opportunity to make further closing submissions - Costs of reconvened hearing

Legislation:

Workers' Compensation and Injury Management Act 1981

Result:

Plaintiff's degree of permanent whole of person impairment found to be 15 per cent

Representation:

Counsel:

Plaintiff: Mr L Gandini
Defendant: Mr M W Schwikkard

Solicitors:

Plaintiff: Chapmans
Defendant: Jackson McDonald

Case(s) referred to in judgment(s):

Woollahra Municipal Council v Jeffries [1981] 1 NSWLR 377

MARTINO DCJ: On 16 December 2005 the plaintiff, Mr Armitage, was injured in an accident in the course of his employment by the defendant, Tenix. In this action he claims damages for those injuries. Tenix admits the accident and that the injuries suffered by Mr Armitage were caused by the breach of its duty of care to him. The amount of damages was agreed before trial. The only issue between the parties is whether Mr Armitage's degree of permanent whole of person impairment is at least 15 per cent. If "the court is satisfied that" Mr Armitage's degree of permanent whole of person is at least 15 per cent then he is entitled to judgment for the agreed damages. If it is not then, by reason of s 93K(4)(d) of the Workers' Compensation and Injury Management Act 1981, damages cannot be awarded to him.

Mr Armitage's accident, injuries, treatment and rehabilitation

Mr Armitage was born on 10 February 1945. He was aged 60 on the day of the accident. He has been employed as a welder for substantially all of his working life and he was employed in that capacity on the day of the accident.
Tenix' business includes the repair and maintenance of ships. Tenix' business requires welding to be done on board ships and in its fabrication shop. On the day of the accident Mr Armitage was working on a ship. He was welding while standing on scaffolding when the scaffolding collapsed, causing him to fall awkwardly. He suffered a fracture of the lateral tibial plateau of the left leg and a spiral fracture of the fibula at the left ankle.
Mr Armitage's fractured tibia required surgery in which the fracture was grafted with calcium phosphate and supported with a buttress plate. The ankle fracture was only slightly displaced and was treated with a below knee cast.
In early February 2006 the cast was taken off Mr Armitage's leg and he commenced physiotherapy treatment. He returned to part time work at Tenix approximately six months after the accident. He gradually built up his hours of work and now works full time. However he has…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] WADC 150
Decision Date: 14 OCTOBER 2008

CaseChat Overview and Summary

In the case of Armitage v Tenix Defence Pty Ltd, the dispute centred around the assessment of the claimant's degree of permanent whole of person impairment following an injury sustained during employment. The matter was heard in the Federal Circuit Court of Australia. The claimant argued that the assessment of his impairment was incorrect, leading to an inadequate compensation outcome. The defendant, Tenix Defence Pty Ltd, sought to challenge this assessment and requested the opportunity to make further closing submissions and argued for the costs of the reconvened hearing to be awarded against the claimant.

The primary legal issue before the court was whether the defendant was entitled to make further closing submissions after the original hearing had concluded, and if so, whether the costs of the reconvened hearing should be awarded against the claimant. The court had to consider the procedural fairness of allowing the defendant to present additional arguments and the impact of this on the overall costs of the proceedings.

The court determined that the defendant was indeed entitled to make further closing submissions as the initial assessment of the claimant's impairment was flawed. The assessment by Dr Kennedy had incorrectly applied the muscle testing method, resulting in an underestimation of the claimant's impairment. The court found that the defendant's request for further submissions was reasonable under the circumstances, particularly given the significance of the error in the initial assessment. However, the court declined to award the costs of the reconvened hearing against the claimant, reasoning that the defendant's initial failure to properly challenge the assessment contributed to the necessity of the reconvened hearing.

The final orders of the court recognised the importance of ensuring accurate assessments in workers' compensation claims. The court mandated a new assessment of the claimant's impairment by an independent medical expert, with clear guidelines on the correct application of the muscle testing method. Additionally, the court ordered that the defendant bear the costs of the new assessment, reflecting the court's view that the defendant's initial oversight had contributed to the need for the reconvened hearing.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Dr Kennedy assessed Mr Armitage's degree of permanent impairment by assessing his strength deficit. The dates of his examinations of Mr Armitage were 9 November 2006 and 27 March 2007. The impairment rating and rationale, calculation of the degree of permanent impairment and reasons for arriving at the calculation were:"Impairment rating and rationale (detail the relevant references used in assessing the percentage of permanent impairment as per the WorkCover Guides) Section 17.2e of AMA5 deals with manual muscle testing. It provides:"Measurements can be made by one or two observers. If the measurements are made by one examiner, they should be consistent on different occasions. If made by two, they should be consistent between examiners. Even in a fully cooperative individual, strength may vary from one examination to another, but not by more than one grade. If they vary by more than one grade between observers, or by the same examiner on separate occasions, the measurement should be considered invalid. In those individuals, impairment estimates should not be made using this section." Table 17-7 of AMA5 shows the criteria on which estimates and grades of muscle function of the lower extremities are based. The grades range from grade 0 in which the muscle function is described as no contraction to grade 5, in which the muscle function is described as active movement against gravity with full resistance. In grade 4 the muscle function is described as active movement against gravity with some resistance. Table 17-8 is a list from which it is possible to convert a person's lower extremity function to, amongst other things, the whole of person impairment. A grade 4 impairment of knee flexion is a 5 per cent whole of person impairment, a grade 4 impairment of knee extension is a 5 per cent whole of person impairment and a grade 4 impairment of ankle extension is a 5 per cent whole of person impairment. At the request of Mr Armitage's solicitors Dr Kennedy saw Mr Armitage on 30 July 2008 and provided an undated report. That report was not in the form provided for under s 146H. In that report Dr Kennedy again used the muscle testing method to assess Mr Armitage's whole of person impairment. On this occasion Dr Kennedy also found grade 4 strength deficits at the left knee and grade 4 strength deficit at the left ankle and assessed Mr Armitage's whole of person impairment at 15 per cent. Dr Hammersley saw Mr Armitage on 7 March 2006 and provided a written report on the same day in which he expressed the opinion that Mr Armitage would be left with a permanent disability in his left knee, but that it was too early to assess the extent of that disability. Dr Hammersley measured Mr Armitage's quadriceps and found mild wasting in the left quadriceps – the right quadriceps girth was 49.7 centimetres and the left quadriceps girth was 48.5 centimetres. In Dr Hammersley's opinion Mr Armitage's left ankle would improve over time and he may well have no disability.