Bloomfield v Liebherr-Australia Pty Ltd - [2004] WADC 171

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: BLOOMFIELD -v- LIEBHERR-AUSTRALIA PTY LTD [2004] WADC 171

CORAM: DEPUTY REGISTRAR HEWITT

HEARD: 11 AUGUST 2004

DELIVERED : 26 AUGUST 2004

FILE NO/S: CIVO 174 of 2004

MATTER :IN THE MATTER of an application by Eric Wayne Bloomfield for leave to commence action against Liebherr-Australia Pty Ltd in the matter of Section 93D (4) and (5) (c) of the Workers' Compensation And Rehabilitation Act 1981(as amended)

BETWEEN: ERIC WAYNE BLOOMFIELD
Plaintiff
AND
LIEBHERR-AUSTRALIA PTY LTD
Defendant

Catchwords:

Practice - Western Australia - Application for leave to commence a proceeding - Turns on its own facts

Legislation:

Workers' Compensation and Rehabilitation Act 1981

Result:

Application dismissed

Representation:

Counsel:

Plaintiff: Mr C Phillips
Defendant: Mr M J Civitella

Solicitors:

Plaintiff: Chris Phillips
Defendant: Crisp Civitella Smith

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

Fraser & Ors v Southern Cross Homes WA Inc (1994) 11 SR (WA) 68
Wright v Shire of Albany (1993) Aust Torts Report 81-239

Case(s) also cited:

Sgro v New Cement Co Pty Ltd, unreported; DCt of WA; Library No 4564; 9 August 1995

DEPUTY REGISTRAR HEWITT: In this matter the plaintiff seeks the leave of the Court to commence proceedings against the defendant in relation to a disability which he allegedly sustained whilst in the employ the defendant between 1998 and 1999.
The plaintiff claims that during that period by virtue of the use of various solvents and paints he suffered a variety of physical injuries the most important of which are a manifestation of fatigue and loss of motivation, some cognitive defects, a rash on his arm and difficulties with mood changes.
The plaintiff has brought his application relying upon the provisions of s 93D of the Workers' Compensation and RehabilitationAct1981 in the form that Act stood prior to its amendment in 1999. In order to obtain a grant of leave it is necessary for the plaintiff to demonstrate that he has a serious disability which for the purposes of the present application requires the Court to make a finding that the plaintiff is likely to suffer a future pecuniary loss at least the equal of the prescribed amount which currently stands at $140,000. The work "likely" has been interpreted to mean "a real and not a remote chance". It is not an assessment on the basis of probabilities. (Fraser & Ors v Southern Cross Homes WA Inc (1994) 11 SR (WA) 68).
There is a considerable conflict on the affidavit evidence as to whether or not the plaintiff was ever injured by exposure to lead and other toxins in the course of his employment with the defendant and the medical evidence on that issue is very much at odds. The authorities have established that such conflicts are to be resolved by adopting the most favourable finding for the plaintiff provided such finding is reasonably open on the material in evidence. Therefore, on that basis it seems to me that it is open to make a finding that the plaintiff does suffer from the injuries he claims as attested by the medical opinions of Professor Andrew Harper and Dr Moira Somers and the opinion Ms Leonie Coxon a clinical forensic psychologist.
Applying the appropriate test it seems to me that this evidence is sufficiently persuasive to bring me to the conclusion in the present case that the plaintiff does suffer from the disabilities of which he complains. To the extent that those disabilities can be quantified Professor Harper considers that his loss of mental function is mild and he assesses it at 18 per cent of the loss of effective use of his mental capacity. He also concludes the condition as permanent. Although not speaking as to the long term affects of exposure to chemicals the report of Dr K C Wan supports the proposition that such problems as the plaintiff now has were precipitated by his exposure to solvents and inorganic lead from his employment with the defendant.
Having made findings on the basis that I earlier described in favour of the plaintiff I now turn to examine the affect the disability has had on the plaintiff with particular reference to those problems and symptoms leading to future pecuniary loss. A number of propositions have been advanced by the plaintiff to support his case and the first of them is that had it not been for the diminution in his capacities the plaintiff would have been able to pursue a career as a farm manager earning a substantial income. The plaintiff presently earns approximately $50,000 a year and he has advanced materials to suggest that he would have been able to earn $70,000 per year had he been physically able to follow a vocation as a farm manager.
On that score a number of factors strike me as relevant:
1.   The plaintiff is 47 years-of-age and has never worked as a farm manager.
2.   Such activities as the plaintiff has pursued in the way of running a farm have, according to the materials before me, generated a loss in each year of operation.
3.   The evidence of the likely remuneration of a farm manager and the availability of such positions strikes me as so thin that it should be disregarded.
I am off the view that the prospect of the plaintiff ever having worked as a farm manager is extremely speculative, the availability of such a position and the earnings from such position are entirely speculative and I am not prepared to assess future pecuniary loss through the alleged inability of the plaintiff to pursue such a vocation.
The next head advanced by the plaintiff is that he has special needs which will require substantial expense to cater for. It is first said that he requires an all organic diet and filtered water system and various costings are advanced for those items.
The medical reason that an organic diet is required has not been explained in the materials but I imagine it is said to be justified on the basis that further chemical exposure is likely to be detrimental. There is nothing before me to indicate the level of risk which the plaintiff would run of such exposure nor the affects of such exposure were it to eventuate. There is no evidence before me to indicate that the plaintiff has ever followed the dietary regime and water filtering regime now suggested and there is no evidence to suggest that over the five years or thereabouts from the date of his alleged exposure to the present there has been any affect on his health related to his diet or water intake.
Furthermore the costings are not in my view reliable and can not be accepted. Therefore to the extent that the plaintiff claims a future pecuniary loss relating to a special diet and special water filtering needs I do not accept that to be a proper basis of assessment of future pecuniary loss.
The next matter is an allegation that the plaintiff requires assistance in preforming housework, managing his life in general, and in gardening. Various costings are provided for the provision of such services. The basis of the need for housekeeping services is the observation that certain of the rooms in his home are neglected as opposed to others such as the kitchen, bedroom and laundry which are kept in a good condition. Likewise it is said that the garden is in want of maintenance.
The plaintiff is a 47 year-old-man working a normal working week with an employer earning approximately $50,000 per year. His duties include the duty of driving a crane. In addition to those tasks he has undertaken the task of building a house on land which he owns and from time to time he works for acquaintances driving heavy farm machinery. I am unable to accept and do not accept notwithstanding the evidence which is put before me that a man thus described is in need of these services of housekeeper and a case manager and a gardener and those costings should be included in assessment in his future pecuniary loss. In my view I am not bound to uncritically accept every proposition which is contained in an affidavit nor every proposition contained in a medical report. The opinions contained fly in the face of common sense and in my view the plaintiff's history over the last four years. The plaintiff appears to have coped with his job and his life during that time without the assistance which is now considered to be essential. For that reason I am not prepared to include within the assessment of future pecuniary loss any allowance for gardening, case care or housekeeping. Additional to the points to which I have just made is the fact that the plaintiff has formed a relationship with a women who is now his fiancée and whom he plans to marry. That does not appear to me to be the behaviour of a man so paralysed by his symptoms that he needs assistance with the day to day tasks of living.
The final basis upon which a favourable assessment of future pecuniary loss might arise requires me to consider the prospects of the plaintiff in his employment and any alternative employment which he may need to obtain in the future. Although the plaintiff's condition appears to have stabilised since he left the employment of the defendant there is evidence in the materials before me particularly the reports of Dr K C Wan which suggests some likelihood of deterioration although that likelihood has not been quantified. Dr Harper however who's report is generally supportive of the plaintiff does not agree aging is likely to cause further deterioration unless there is some further assault on the plaintiff's nervous system.
On my analysis the only basis upon which this plaintiff could be entitled to a determination in his favour would be on the basis that in the event that he called upon to obtain a fresh job his various symptoms and the difficulties which they cause him at work would disadvantage him in the work place such that he would be longer out of work than otherwise might have been the case, that he might have to accept a job at a lower level of remuneration than that he has presently enjoys and that he maybe unable to find job at all.
The plaintiff has for the last three years at least been in permanent fulltime employment which he obtained on the open market and his job is one which involves some level of responsibility in the sense that he is using heavy equipment which presumably, if mis-managed, could impose a risk on his workmates. There is some evidence from a workmate supporting the plaintiff's proposition that in some respect his performance at work is unsatisfactory and that he appears to fatigue easily and be susceptible to stress.
Am I therefore, as I am invited, to characterise the plaintiff's present employer as a sympathetic employer and apply the principles of Wrightv Shire of Albany (1993) Aust Torts Report 81-239. The objective evidence is that the plaintiff has not deteriorated over the last few years and as a consequence I conclude that he is as fit to work now as he was when obtained his present employment. That he was able to obtain that employment and hold that employment suggests to me that his employer is not a sympathetic employer but simply an employer seeking to have an employee perform a task to a particular standard which the plaintiff is able to achieve. There is nothing in the materials to suggest that in any way the plaintiff's employer is beholden to him and has some moral or other obligation to overlook substandard performance. That appears not to be the case. The facts appear to support the conclusion that the plaintiff is performing his duties to the satisfaction on his employer and there is no suggestion otherwise.
How am I then to quantify the plaintiff's future pecuniary loss. Accepting as I do that there is some disability including a cognitive function ranging between 14.3 per cent (Wan) to 18 per cent (Harper) together with various impairments and in particular susceptibility to fatigue.
The task is a daunting one. In order to reach the required $140,000 it is necessary for me to conclude that there is a real prospect that by virtue of his disability the plaintiff is going to lose more than one-third of the total income which he could have earned over the remainder of his working life (to the age of 65 years) because of his disability. I find that very difficult to reach that conclusion and in my view the materials before me do not justify me reaching that conclusion. I accept on the materials before me that there has been a diminution in earning capacity but I am unable to be satisfied even to the relatively shallow standard required in an application of this kind that there is a real and not a remote chance that the loss would translate to a future pecuniary loss of not less than $140,000. Accordingly, I am of the view that the plaintiff's application should be dismissed.