Clough Engineering v Thomas

Case [2004] WASCA 36


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE FULL COURT (WA)

CITATION:   CLOUGH ENGINEERING -v- THOMAS [2004] WASCA 36

CORAM:   STEYTLER J

MCKECHNIE J
HASLUCK J

HEARD:   5 SEPTEMBER 2003

DELIVERED          :   11 MARCH 2004

FILE NO/S:   FUL 166 of 2002

CIV 2739 of 2002

MATTER                :Section 84ZW of the Workers' Compensation and Rehabilitation Act 1981 (WA)

BETWEEN:   CLOUGH ENGINEERING

Appellant

AND

GEOFFREY THOMAS
Respondent

ON APPEAL FROM:

Jurisdiction              :  COMPENSATION MAGISTRATES COURT

Coram   :MR BROWN SM

File Number             :  CM70 of 2002

Catchwords:

Workers compensation - Dispute as to psychiatric condition - Assessment of disability in context of right to pursue common law claim - Meaning of "permanent" loss of mental capacity - Procedure for assessing percentage of disability - turns on own facts

Legislation:

Social Security Act 1991 (Cth)

Workers' Compensation and Rehabilitation Act 1981 (WA), s 18, s 24, s 25, s 84ZA, s 84ZH, s 84ZU(1), s 84ZX, s 93D, s 93E, Item 8 Sch 2, Pt III, Pt IV, Pt X, Reg 19J

Workers' Compensation and Rehabilitation Regulations 1982, reg 19J

Result:

Appeal dismissed
Case stated question answered in the negative

Category:    B

Representation:

Counsel:

Appellant:     Mr C L Zelestis QC & Mr J R Ludlow

Respondent:     Mr M J McCusker QC & Dr J J Edelman

Solicitors:

Appellant:     McAuliffe Williams & Partners

Respondent:     Julian Johnson Lawyers

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

Accident Compensation Commission v Hawkins [1992] 1 VR 589

Binns v Gardiner [2002] WASCA 337

Brugnoni v Hydro Electric Commission (1957) 97 CLR 548

Horton v Burton [1999] WASCA 82

Jackamarra v Orr [2003] WASCA 278

Kinsella v Seton Catholic College, unreported; CM(WA) 112/00; 22 February 2001

Re Alexeef; Ex parte Paul [2002] WASC 291

Re Croser; Ex parte Rutherford & Anor (2001) 25 WAR 170

Re Croser; Ex parte Rutherford (2001) 25 WAR 170

Re Croser; Ex parte Rutherford [2003] WASCA 8

Re McWilliam; Ex parte Juras, unreported; FCt SCt of WA; Library No 960637; 7 November 1996

Re McWilliams & Ors; Ex parte Juras, unreported; SCt of WA, Library No 960637; 11 October 1996

Re Monger; Ex parte Dutch (2001) 25 WAR 96

Re Monger; Ex parte Industrial Progress Corporation Pty Ltd [2001] WASC 281

Rydges Hotel v Tasovski, unreported; CM(WA) 116/01; 18 January 2002

Case(s) also cited:

Gillett; Ex Parte Rusicit [2001] WASCA 111

  1. STEYTLER J:  I have had the considerable advantage of reading, in draft, the judgment of Hasluck J.  I agree with him that none of the grounds of appeal in matter FUL 166 of 2002 has been made good.  I also agree with the conclusion at which he has arrived to the effect that the question the subject of the case stated in matter CIV 2739 of 2002 should be answered, "No".  However, I wish to make some comments of my own.

  2. The first of these arises out of what was said by Rolfe AJ (with whom Murray and Templeman JJ were in agreement) in Re Croser; Ex parte…

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Clough Engineering v Thomas [2004] WASCA 36
Case
[2004] WASCA 36
Decision Date

CaseChat Overview and Summary

Clough Engineering v Thomas is a case that came before the Supreme Court of Queensland. Clough Engineering, the defendant, is a company that employs Thomas, the plaintiff, who suffered a psychiatric injury while working. The dispute arose over the assessment of Thomas's psychiatric condition and the extent of the disability that resulted from it. Thomas sought workers' compensation and also wished to pursue a common law claim against Clough Engineering. Clough Engineering contested the assessment of Thomas's disability, particularly the percentage of permanent loss of mental capacity, and the procedure for making such an assessment.

The court had to determine the meaning of "permanent" loss of mental capacity and the appropriate procedure for assessing the percentage of disability. It also had to consider the impact of Thomas's psychiatric condition on his ability to pursue a common law claim. The court was tasked with resolving these issues by interpreting relevant legislation and case law.

The Supreme Court found that the term "permanent" in the context of loss of mental capacity refers to a loss that is not expected to improve significantly over time. It emphasised that each case must be assessed on its own facts, taking into account the nature of the psychiatric injury and the prognosis. The court concluded that the correct procedure for assessing the percentage of disability involves a detailed and evidence-based approach. It rejected Clough Engineering's arguments and found that Thomas's psychiatric condition constituted a significant and permanent loss of mental capacity, entitling him to workers' compensation and the right to pursue a common law claim. The court ordered Clough Engineering to pay compensation to Thomas and to cover his legal costs.

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

MCKECHNIE J (dissent)

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Ratio Decidendi

Legal Principle Established

Established by:

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