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

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.
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…

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.

Continue reading Clough Engineering v Thomas

Details

AGLC: Clough Engineering v Thomas [2004] WASCA 36
Case: [2004] WASCA 36
Decision Date: 11 MARCH 2004

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