Draper v Hammersley Iron Pty Ltd - [2005] WADC 11

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: DRAPER -v- HAMMERSLEY IRON PTY LTD & ORS [2005] WADC 11

CORAM: MARTINO DCJ

HEARD: 26 NOVEMBER 2004

DELIVERED : 1 FEBRUARY 2005

FILE NO/S: CIVO 227 of 2004

BETWEEN: ANDREW DRAPER
Plaintiff (Respondent)
AND
HAMMERSLEY IRON PTY LTD (ACN 004 558 276)
First Defendant (First Appellant)
SANDWELL (AUSTRALIA) PTY LTD (ACN 071 372 597)
Second Defendant (Second Appellant)
CLOUGH ENGINEERING LIMITED
Third Defendant (Third Appellant)

Catchwords:

Workers' compensation - Application for leave to bring proceedings - Appeal against grant of leave

Legislation:

Workers' Compensation and Rehabilitation Act 1981 s 93D

Result:

Appeal dismissed

Representation:

Counsel:

Plaintiff (Respondent)     :     Mr P S Bates
First Defendant (First Appellant) :    Ms R L Pope
Second Defendant (Second Appellant)     :        Ms R L Pope
Third Defendant (Third Appellant)   :        Ms R L Pope

Solicitors:

Plaintiff (Respondent)     :     Stephen Browne Lawyers
First Defendant (First Appellant) :    Downings Legal
Second Defendant (Second Appellant)     :        Downings Legal
Third Defendant (Third Appellant)   :        Downings Legal

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

Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
Smith v United K G Engineering Services Pty Ltd (2004) WADC 194
Toolan v Metropolitan (Perth) Passenger Transport Trust (2001) 25 WAR 1

Case(s) also cited:

Dossett v TKJ Nominees Pty Ltd [2003] HCA 69
Doyle v Browning Ferris Industries (WA) Pty Ltd, unreported; DCt of WA; Library No D980180; 26 June 1998
Duca v Aherns Holdings Pty Ltd [2004] WADC 85
Jongen v CSR Ltd (1992) A Tort Rep 81192
Lend Lease Employer Systems Ltd v Lydon, unreported; FCt SCt of WA; Library No 980088; 27 February 1998
Mayne v Mayne Nickless Ltd, unreported; FCt SCt of WA; Library No 960223; 26 March 1996
Palamara v City of Perth (1996) 16 WAR 235
Pearbrook Holdings Pty Ltd v Bartlett, unreported; DCt of WA; Library No D970413; 19 December 1997
Pollitt v Midland Brick Co (1995) 14 SR (WA) 251
Richardson v Whymark Nominees Pty Ltd [2004] WASCA 208
Samson v Industrial Progress Corporation Pty Ltd, unreported; FCt SCt of WA; Library No 970058; 21 February 1997
SGRO v New Cement Co (1995) 15 SR (WA) 44
Wright v Shire of Albany, unreported; FCt SCt of WA; Library No 930434; 5 August 1993

MARTINO DCJ: This is an appeal by the first, second and third defendants against a decision by Deputy Registrar Christo granting the plaintiff leave under the former s 93D of the Workers Compensation and Rehabilitation Act 1981 to commence proceedings against the defendants claiming damages for personal injuries. For reasons I gave in Smith v United K G Engineering Services Pty Ltd (2004) WADC 194 it is my view that I should determine the appeal on the basis that this Court does have power to grant leave under the repealed s 93D even where no application was on foot when the section was repealed.
The plaintiff contends that he is likely to have a future pecuniary loss resulting from the injuries suffered in an accident on 20 August 1998 of an amount that is at least equal to the prescribed amount of $139,995. The plaintiff must show that he has a real and not remote chance of establishing that future pecuniary loss. Conflicts in the evidence are to be determined on the view of the evidence reasonably open which most favours the plaintiff: Toolan v Metropolitan (Perth) Passenger Transport Trust (2001) 25 WAR 1.
The defendants filed a notice of appeal which contained the following three grounds of appeal:
"The learned Deputy Registrar erred in:
1Allowing the time period for the hearing of the originating summons to be abridged.
2Refusing an adjournment of the originating summons and hearing the originating summons when the First, Second and Third Defendants had not had the opportunity to file an affidavit in reply;
3Finding that if the Plaintiff is successful in the proposed action, the Plaintiff is likely to be awarded damages for future pecuniary loss in excess of the prescribed amount under the Workers' Compensation & Rehabilitation Act 1981."
As this appeal is a fresh hearing of the application for leave (Hazart Pty Ltd v Rademaker (1993) 11 WAR 26) the defendants did not pursue the first two grounds of appeal but relied only upon the third.
The plaintiff was born on 29 September 1970. He claims that his injuries were caused by the negligence of the defendants and that the defendants are deemed to be his employers at the time by s 175 of the Act. The plaintiff's employment contract was with Monadelphous Engineering.
At the time of the accident Monadelphous Engineering employed the plaintiff as a rigger. He suffered serious injuries when he fell approximately 10 metres. He has made a partial recovery from those injuries. He was not successful in his attempts to return to work as a rigger but has obtained employment as an engineering projects manager and is fit for that work.
Medical reports on the plaintiff confirm that he is unfit for the heavy work of a rigger and the defendants do not dispute that the plaintiff is unfit for that work.
Copies of the plaintiff's tax returns adduced in evidence by him show that his taxable income for the years from 30 June 1995 to 30 June 2003 was as follows:
•         30 June 1995 : $20,691
•         30 June 1996 : $7,336
•         30 June 1997 : $38,617
•         30 June 1998 : $72,526
•         30 June 1999 : $70,219
•         30 June 2000 : $73,794
•         30 June 2001 : $72,198
•         30 June 2002 : $45,438
•         30 June 2003 : $58,048
While the plaintiff's income was quite low in the financial years ended 30 June 1995, 30 June 1996 and 30 June 1997, his taxable income for the financial year ending 30 June 1998 (the financial year immediately prior to the accident) shows that he was at the time of the accident capable of maintaining a much higher level of income.
Further, there is evidence that the plaintiff's income may have increased if he had not been injured. That evidence is contained in his affidavit sworn on 13 August 2004. In that affidavit the plaintiff deposes that a Mr Bruno Bassanese was employed by Monadelphous Engineering as a rigger at the time that the plaintiff was so employed. Mr Bassanese has continued to work for Monadelphous Engineering and has been promoted to the position of a crane operator where he earns very high levels of income. Annexed to the plaintiff's affidavit are copies of Mr Bassanese's PAYG payment summaries for the years ended 30 June 2003 and 30 June 2004. These show that Mr Bassanese's gross income for those years was $112,618 and $123,500 respectively. The plaintiff deposes that he is aware of the duties of a crane operator and that the duties of a crane operator are just as physically onerous as those of a rigger. He also deposes that he believes that if he had not been injured he would have been able to continue working for Monadelphous Engineering and secured a promotion to the position of crane operator.
Taking the view of the evidence reasonably open that is most favourable to the plaintiff it is my view that I should have regard to the possibility of the plaintiff obtaining a promotion to a crane operator if he had not been injured. A taxable income of $123,500 a year equates to an after tax income of $76,785 a year which is $1,477 a week. The plaintiff's taxable income for the year ended 30 June 2003 of $58,048 which at current tax rates equates to an after tax income of $42,865 a year which is $824 a week. The difference between $1,477 and $824 is $653. The multiplier for 31 years until the plaintiff attains the age of 65 is 748.4. A weekly loss of $653 for 31 years is a loss of $488,705. If I make a very large deduction of 50 per cent from that figure for contingencies, having regard to the fact that the plaintiff had not actually obtained employment as a crane operator, the plaintiff's future loss of earning capacity is $244,353 and so is in excess of the prescribed amount.
I conclude therefore that the plaintiff is likely to have a future pecuniary loss resulting from his disability of an amount that is at least equal to the prescribed amount and that Registrar Christo's decision was correct. I therefore dismiss the appeal.