Bolden v Ian Bolden Contracting Pty Ltd
[2001] VSC 387
•12 October 2001
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT WARRNAMBOOL
COMMON LAW DIVISION
No. 1384 of 2000
| TODD JOSEPH BOLDEN | Plaintiff |
| v | |
| IAN BOLDEN CONTRACTING PTY LTD | Defendant |
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JUDGE: | Eames J | |
WHERE HELD: | Warrnambool | |
DATE OF HEARING: | 11 October 2001 | |
DATE OF RULING: | 12 October 2001 | |
CASE MAY BE CITED AS: | Bolden v Ian Bolden Contracting Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2001] VSC 387 | |
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Ruling – Accident Compensation Act 1985 – trial by jury – plaintiff brings claims for damages for injuries suffered when employed by defendant in 1996 – aggravation of injury in 1998 when employed by second employer – WorkCover payment continuing from insurer of second employer – whether s. 135A(ii) applies – past loss of earning capacity – whether jury or judge required to deduct past WorkCover payments – future loss of earning capacity – factors relevant to jury assessment – whether jury should be discharged and trial be by judge alone.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R. Meldrum QC with Mr T. Tobin | Maddens Lawyers |
| For the Defendant | Mr D. Curtain QC with Mr R. Middleton | Lander & Rogers |
HIS HONOUR:
Counsel for the plaintiff has sought a ruling as to the way in which the claim for pecuniary loss damages may be presented to the jury.
In this action the plaintiff claims damages for back and other injuries suffered at work in an accident on 22 January 1996. He was then employed by the defendant, Ian Bolden Contracting Pty Ltd. The plaintiff claims that he was totally incapacitated for work for almost all of the period from 22 January 1996 until 14 March 1997. On 20 August 1998 whilst employed by South-West Plastering, the plaintiff suffered a further injury. The work which he was engaged on at that time had been obtained as part of a process of rehabilitation, and was subsidised by the defendant to the present proceedings. The plaintiff claims to have become totally incapacitated for employment in September 1999, and has been in receipt of WorkCover payments from the authorised insurer of South-West Plastering since that date, and continuing.
The particular issue relates to the question whether in assessing loss of earning capacity to date, in the proceedings against the first employer (the defendant) the jury must itself make an allowance for the WorkCover payments which have been received from the insurer of the second employer, or whether by virtue of s.135A(11) of the Accident Compensation Act 1985, I must, myself, make that deduction from any jury assessment of damages for pecuniary loss. The subsidiary question which arose concerns the assessment of future loss of earning capacity. Mr Tobin, who argued these questions for the plaintiff, submitted that in assessing future loss of earning capacity, the jury would be required to have regard to a range of difficult legal and factual questions which might bear upon the question whether the WorkCover payments would be likely to continue into the future.
It will be the plaintiff's case that the event in 1998, while employed with the second employer, was an aggravation of the original injury suffered when employed by the defendant. Thus, the jury will be asked to conclude that the 1996 injury was a cause of the losses and damage which flowed from the 1998 event.
Section 135A(11) reads as follows:
“(11)If a judgment, order for damages, settlement or compromise is made or entered in favour of a worker or the dependants of a worker in respect proceedings referred to in sub-section (1), the amount of judgment, order for damages, settlement or compromise must be reduced by –
(a)to the extent that it is in respect of pecuniary loss, the amount of compensation (if any) paid otherwise than under sections 98, 98A and 99 or to the extent that section 93(10)(a) of the Transport Accident Act1986 applies, except any such compensation paid in respect of the whole or any part of the period of 18 months after the relevant transport accident;
(b)to the extent that it is in respect of non-pecuniary loss, the amount of compensation (if any) paid under sections 98 and 98A.”
Central to Mr Tobin's arguments was his contention that the 1998 event constituted a new injury for which the plaintiff was entitled to compensation as against the second employer. That being so, the terms of s.135A(11), he submitted, did not apply, because that section required the deduction by the judge of only such amounts of compensation as related to the original injury. That was so, he submitted, because the introductory words of the sub-section related the sub-section only to "proceedings referred to in sub-section(1)," and that sub-section in turn, related to proceedings "in respect of an injury arising out of or in the course of, or due to the nature of employment before 12 November 1997," which in this case is the injury occasioned on 22 January 1996. Mr Tobin submitted that the conclusion that WorkCover payments, in such circumstances, were not to be deducted by the judge, but were to be considered by the jury, was supported by the judgment of the Full Court in Sharp v Associated Pulp and Paper Mills Limited[1].
[1][1989] VR 139 (see, in particular, the addendum at p.147).
As to past pecuniary loss, it may be observed that the Full Court held that the jury verdict should be "diminished" by the amount of any WorkCare payments, which had been received by the plaintiff. That suggests to me that a jury acting properly should reduce the sum to be awarded for past loss of earning capacity by the whole of such sum received. Thus, whether the deduction is made by the judge or by the jury the result should be the same, as to past loss.
I am not persuaded, however, that the decision in Sharp should be regarded as overriding the plain, and wide, terms of s.135A(11). S.135A was only inserted into the Act by Act No. 37 of 1992, that is after the decision in Sharp. I have not researched whether there was a similar provision in the legislation that was examined by the Full Court, but I was not referred to any such provision during argument.
The terms of s.135A(11) do indeed refer back to the injury which is the subject of the claim, but the definition of “injury”, by s.5, includes the recurrence, aggravation, exacerbation or deterioration of any pre-existing injury or disease. That would mean that 1998 event was itself an injury (although whether under the Act it would give an entitlement to make a claim for damages is an issue I have not considered). The definition, however, is also wide enough, in my view, to mean that sub-section(11) applies to the WorkCover payments made by the insurer of the second employer.
The sub-section requires that the judge deduct the amount of compensation (if any) paid otherwise than pursuant to certain provisions of the Act, and of the Transport Accident Act 1986. Those provisions do not apply here. I presume that the payments of WorkCover would constitute “compensation”, under Part IV of the Act. In my view, the extended definition of “injury” means that for the purpose of sub-section(11) those payments are also payments of compensation with respect to the injury suffered on 22 January 1996.
Accordingly, I propose to tell the jury that in the event that they conclude that the original injury was a cause of the injury, loss and damage which flowed from the accident in 1998, then insofar as those injuries, loss and damage have continued to trial, they need make no reduction with respect to past payments of WorkCover received with respect to the 1998 event, because I will make that deduction from any assessment they make for pecuniary loss damages.
As to the question of future loss of earning capacity, the fact that the plaintiff is at present in receipt of WorkCover benefits and may continue to be receiving such benefits is relevant to the jury's assessment of damages under that heading.
Mr Tobin anticipated that that question would introduce a myriad of complex legal and factual issues which the jury would have to take into account in determining the probability of the plaintiff having a continuing entitlement to such benefits. It seems to me, however, that the question need not introduce such complexity to the case. In my view, the task for the jury should be capable of being approached in a manner similar to that adopted by Gobbo J in his charge to the jury concerning the probability of the receipt of future unemployment benefits in the case of Bertram v. Kapodistrias[2].
[2][1984] V.R. 619 at 626.
It may be that in presenting their respective cases counsel will invest the assessment of damages with such a degree of complexity, or else will seek to have the jury determine questions which I regard as questions of law, not of fact. In the event that such difficulties arose, then I would have to deal with them and to consider whether I could appropriately instruct the jury so as to prevent their task becoming unreasonably burdensome, or otherwise too difficult for a jury to resolve.
In the course of his judgment Gobbo J adopted the approach of King J in an unreported case in which His Honour concluded that he should wait until counsel had concluded their addresses before assessing the degree of particularity or specificity which was appropriate for the Charge, as to loss or earning capacity and the receipt of future benefits. I will adopt that approach too. It may be that at that time I might need to consider whether the task of the jury had assumed such proportions and complexity that it would be appropriate to discharge the jury, and to proceed to resolve the case myself.
That situation does not presently exist, and may well not arise at all. It is not a course which should be adopted, save where it was very clear that the situation was not capable of being cured by an appropriately framed Charge.
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