| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : CORK -v- GEMCO RAIL PTY LTD & ANOR [2004] WADC 204 CORAM : ACTING PRINCIPAL REGISTRAR KINGSLEY HEARD : 14 SEPTEMBER 2004 DELIVERED : 13 OCTOBER 2004 FILE NO/S : CIVO 133 of 2004
MATTER : IN THE MATTER of Section 93D(4) of the Workers' Compensation & Rehabilitation Act 1981 as at 9 August 1999
And
IN THE MATTER of an Application by ERIK JAMES CORK for leave to commence an action against GEMCO RAIL PTY LTD (ACN 079 764 444) and WESTAFF (AUSTRALIA) PTY LTD (ACN 007 654 131)
BETWEEN : ERIK JAMES CORK Plaintiff
AND
GEMCO RAIL PTY LTD (ACN 079 764 444)
First Defendant
WESTAFF (AUSTRALIA) PTY LTD (ACN 007 654 131)
Second Defendant
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<Party Name1="ERIK JAMES CORK", Type1="Plaintiff", Name2="GEMCO RAIL PTY LTD (ACN 079 764 444)", Type2="First Defendant", Name3="WESTAFF (AUSTRALIA) PTY LTD (ACN 007 654 131)", Type3="Second Defendant",>
Catchwords: Practice - Repealed s 93D Workers' Compensation &Rehabilitation Act - Turns on own facts
Legislation: Workers' Compensation & Rehabilitation Act 1981
Result: Application dismissed Representation:
Counsel:
Plaintiff : Mr B L Nugawela
First Defendant : Mr H M O'Sullivan
Second Defendant : Mr C C Rimmer
Solicitors:
Plaintiff : Friedman Lurie Singh & D'Angelo
First Defendant : Srdarov Richards Burton
Second Defendant : Jarman McKenna
Case(s) referred to in judgment(s):
Sampson v Industrial Progress Corporation Pty Ltd, unreported; FCt SCt of WA; Library No 970058; 22 February 1997
Wright v Shire of Albany, unreported; FCt SCt of WA; Library No. 930434; 5 August 1993
Case(s) also cited:
Nil
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1 ACTING PRINCIPAL REGISTRAR KINGSLEY: This is an application by way of originating summons seeking leave to bring an action for damages by the plaintiff against the first defendant and second defendant in respect to personal injuries sustained on 9 August 1999. The plaintiff, formerly known as Eric James Van Leeuwen was born in April 1975. He left school at 16 years of age and has been employed in a manual labouring capacity since leaving school.
2 On 9 August 1999 the plaintiff was hired by the second defendant to work at the first defendant's premises as a welder. Whilst walking across a walkway the plaintiff noticed that some frames had been stacked across the walkway and blocking his path. In an attempt to step over the side frames he fell to the ground and injured his left knee. 3 Mr Genat, orthopaedic surgeon, reports that his diagnosis was of a subluxation of the left patella at the time of the accident. It would appear that the plaintiff has sustained a subluxation of his left patella and probably some damage to the patello-femoral articular surface. There has been surgical realignment of the patella tracking.
Legal principles 4 This is an application for leave to commence proceedings for damages for personal injury. The application is brought pursuant to s 93D Workers' Compensation and Rehabilitation Act 1981 ("the Act") as it was prior to amendments on 5 October 1999. 5 For the purposes of this application the relevant provisions of s 93D state: (a) Damages can only be awarded if the disability is a serious disability. (b) A disability is a serious disability if the future pecuniary loss resulting from the disability is an amount at least equal to the prescribed amount. (c) Proceedings in which damages are sought are not to be commenced without leave of this Court. (d) Leave is to be given if the Court determines the worker is to have a future pecuniary loss at least equal to the prescribed amount. 6 All parties agree that the prescribed amount is $139,995. The onus is on the applicant to satisfy the Court they are likely to have a future
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pecuniary loss at least equal to the prescribed amount. The term likely embodies a concept of a real and not remote chance. This requires the Court to make an assessment, albeit in the preliminary way, and on affidavit, as to the measure of future pecuniary loss. In considering the evidence it is usually appropriate to act on the view reasonably open on the evidence which most favours the applicant (Sampson v Industrial Progress Corporation Pty Ltd, unreported; FCt SCt of WA; Library No 970058; 22 February 1997).
Medical reports 7 In April 2001, Mr Genat said that he was not sure if the plaintiff could perform his pre-accident duties of boilermaker/welder. Mr Genat considers the plaintiff is fit for any other number of light type jobs that do not put excess demands on his injured knee. 8 In a report of October 2000, Mr Hill states that the plaintiff has persistent patello-femoral dysfunction with some laxity and weakness of his patello-femoral articulation. Mr Hill in a report dated November 2001 says that the plaintiff will never be fit to return to work as a boilermaker/welder as he would not be able to manage and would not be safe working on scaffolds or at heights. In a further report of October 2003, Mr Hill states that squatting and knee bending activities would aggravate his symptoms and there would always be some risk that he may suffer a episode of subluxation and loss of power in the leg. For that reason, Mr Hill is of the opinion that the plaintiff should not return to a situation where he would be working on scaffolds or at heights. However, Mr Hill is of the opinion the plaintiff is fit to undertake a range of alternative duties and certainly those of light mechanical retail assistant. 9 The plaintiff deposes that although he is capable of light physical duties he is still symptomatic.
Financial matters 10 The plaintiff deposes that he has not performed any physical work involving bending or kneeling since the accident. In a report dated 10 November 2003 from Consult Occupational Health it is noted that the plaintiff bought some hydro-blasting gear. This work involves standing up and no heavy lifting. 11 The plaintiff is currently working as a labourer/welder doing light duties and works an average of four days per week doing eight hours a day at rate of $20 per hour.
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12 The first defendant opposes the application on the basis that the plaintiff does not demonstrate a future pecuniary loss in excess of the prescribed amount. The first defendant refers me to pages 106 and 107 of the plaintiff's affidavit sworn 26 July 2004 where under the heading Northbridge PPS 1998-1999 there is disclosed a total gross income of $26,912.40. The plaintiff says that between 11 July 1998 to 26 June 1999 a period of 34 weeks he earned an average of $630.50 net per week. This figure appears to be supported by the plaintiff's tax return for year 1999 (see p 28-39).
13 The first defendant seeks to persuade to me that, the gross figure of $26,912 should be divided by 50 and not by 34. The figure 34 represents the number of weeks which the plaintiff worked, or at least worked and received income through the PPS scheme. 14 In considering applications of this nature I am to consider the plaintiff's capacity to work. During the period of time that the plaintiff worked, namely 34 weeks, the plaintiff had a capacity to earn on average $630 net per week. 15 The plaintiff deposes that he is now working and doing light duties as a labourer/welder. The plaintiff deposes he is working eight hours per day, four days a week. He is earning $20 per hour, which translates to a net weekly income of $521. He has been working for about four weeks and already has had time off work due to his injuries. 16 The plaintiff gives no details of the type and nature of work that he is doing. I am not told whether it involves squatting. The plaintiff deposes to having time off work due to his injuries. However, I am not told the extent of the time off work, nor is the time off supported by any evidence. 17 I am left with the impression that the plaintiff is exercising a capacity to work and earn income of approximately $521 net per week, albeit with some difficulty. On that basis the extent of the plaintiff's future loss is approximately $110 net per week. Using the 6 per cent multiplier of 785.6 this results in the future economic loss of $86,416. 18 The plaintiff's counsel suggests that as the plaintiff has only just started work, and has had time off work, and an additional measure of damages can be allowed for the prospect of periods of unemployment (Wright v Shire of Albany, unreported; FCt SCt of WA; Library No. 930434; 5 August 1993). I am not persuaded such an additional measure of damage is appropriate. There is no evidence before me to engage my discretion to allow such an award.
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Conclusion
19 The plaintiff has not persuaded me that he is likely to suffer a future pecuniary loss, exceeding the prescribed amount. 20 The plaintiff's application is dismissed. The costs of the application are the defendants costs, including costs reserved.
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