Dwyer v Movements International Movers (WA) Pty Ltd
[2000] WASCA 75
•24 MARCH 2000
DWYER -v- MOVEMENTS INTERNATIONAL MOVERS (WA) PTY LTD [2000] WASCA 75
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 75 | |
| THE FULL COURT (WA) | 24/03/2000 | ||
| Case No: | FUL:100/1999 | 3 FEBRUARY 2000 | |
| Coram: | KENNEDY J IPP J WHEELER J | 3/02/00 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| PDF Version |
| Parties: | MARK DWYER MOVEMENTS INTERNATIONAL MOVERS (WA) PTY LTD |
Catchwords: | Workers' compensation Application for leave to commence proceedings against employer Whether worker likely to have a pecuniary loss at least equal to the prescribed amount Meaning of "likely" Conflict of medical evidence Outcome dependent in large measure upon worker's credibility |
Legislation: | Workers' Compensation and Rehabilitation Act 1981, s 93D(4), s 93D(5) |
Case References: | Australian Telecommunications Commission v Krieg Enterprises Pty Ltd (1976) 27 FLR 400 Boughey v The Queen (1986) 65 ALR 609 Jungarrayi v Olney (1992) 105 ALR 527 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 April 1996 Port Nelson Ltd v Commerce Commission [1996] 3 NZLR 554 Sampson v Industrial Progress Corporation Pty Ltd, unreported; FCt SCt of WA; Library No 970058; 21 February 1997 Tillmann's Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 27 ALR 367 Transport Ministry v Simmonds [1973] 1 NZLR 359 Australian Securities Commission v Schreuder (1994) 14 ACSR 614 Bennett and Bennett (1991) FLC 92-191 Bowen v Tutte (1990) Aust Torts Reports 81-043 Cardiff Corporation v Hall [1911] 1 KB 1009 Cullen v Trappell (1980) 146 CLR 1 Ex parte Duncan (1904) 4 SR (NSW) 217 Dunn v Unwin [1963] Qd R 205 Escobar v Classic Property Services WA Pty Ltd [1999] WADC 149 Jongen v CSR Ltd (1992) ATR 81-192 Leighton Contractors Pty Ltd v Panizza, unreported; FCt SCt of WA; Library No 950562; 19 October 1995 Lloyd v Faraone [1989] WAR 154 Mace v Murray (1955) 92 CLR 370 McGrath v NRMA Insurance Ltd (1996) 24 MVR 428 Paul v Rendell (1981) 55 ALJR 371 Pettit v Dunkley (1971) 1 NSWLR 376 Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118 R v Webb (1994) 74 A Crim R 436 Sgro v New Cement Co Pty Ltd (1995) 15 SR (WA) 44 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 State Government Insurance Commission v Toomath, unreported; FCt SCt of WA; Library No 960218; 24 April 1996 Sun Alliance Insurance Ltd v Massoud [1989] VR 8 Thomas v O'Shea (1989) Aust Torts Reports 80-251 United Constructions Pty Ltd v Gajic (1998) 19 SR (WA) 362 Wade v Allsopp (1976) 50 ALJR 643 Wright v Atkins (1980) 88 LSJS 426 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : DWYER -v- MOVEMENTS INTERNATIONAL MOVERS (WA) PTY LTD [2000] WASCA 75 CORAM : KENNEDY J
- IPP J
WHEELER J
- Appellant (Plaintiff)
AND
MOVEMENTS INTERNATIONAL MOVERS (WA) PTY LTD
Respondent (Defendant)
Catchwords:
Workers' compensation - Application for leave to commence proceedings against employer - Whether worker likely to have a pecuniary loss at least equal to the prescribed amount - Meaning of "likely" - Conflict of medical evidence - Outcome dependent in large measure upon worker's credibility
Legislation:
Workers' Compensation and Rehabilitation Act 1981, s 93D(4), s 93D(5)
(Page 2)
Result:
Appeal allowed
Representation:
Counsel:
Appellant (Plaintiff) : Mr A A Jenshel
Respondent (Defendant) : Mr K S Pratt
Solicitors:
Appellant (Plaintiff) : Leonard Cohen & Co
Respondent (Defendant) : Crisp & Partners
Case(s) referred to in judgment(s):
Australian Telecommunications Commission v Krieg Enterprises Pty Ltd (1976) 27 FLR 400
Boughey v The Queen (1986) 65 ALR 609
Jungarrayi v Olney (1992) 105 ALR 527
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 April 1996
Port Nelson Ltd v Commerce Commission [1996] 3 NZLR 554
Sampson v Industrial Progress Corporation Pty Ltd, unreported; FCt SCt of WA; Library No 970058; 21 February 1997
Tillmann's Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 27 ALR 367
Transport Ministry v Simmonds [1973] 1 NZLR 359
Case(s) also cited:
Australian Securities Commission v Schreuder (1994) 14 ACSR 614
Bennett and Bennett (1991) FLC 92-191
Bowen v Tutte (1990) Aust Torts Reports 81-043
Cardiff Corporation v Hall [1911] 1 KB 1009
Cullen v Trappell (1980) 146 CLR 1
(Page 3)
Ex parte Duncan (1904) 4 SR (NSW) 217
Dunn v Unwin [1963] Qd R 205
Escobar v Classic Property Services WA Pty Ltd [1999] WADC 149
Jongen v CSR Ltd (1992) ATR 81-192
Leighton Contractors Pty Ltd v Panizza, unreported; FCt SCt of WA; Library No 950562; 19 October 1995
Lloyd v Faraone [1989] WAR 154
Mace v Murray (1955) 92 CLR 370
McGrath v NRMA Insurance Ltd (1996) 24 MVR 428
Paul v Rendell (1981) 55 ALJR 371
Pettit v Dunkley (1971) 1 NSWLR 376
Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118
R v Webb (1994) 74 A Crim R 436
Sgro v New Cement Co Pty Ltd (1995) 15 SR (WA) 44
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
State Government Insurance Commission v Toomath, unreported; FCt SCt of WA; Library No 960218; 24 April 1996
Sun Alliance Insurance Ltd v Massoud [1989] VR 8
Thomas v O'Shea (1989) Aust Torts Reports 80-251
United Constructions Pty Ltd v Gajic (1998) 19 SR (WA) 362
Wade v Allsopp (1976) 50 ALJR 643
Wright v Atkins (1980) 88 LSJS 426
(Page 4)
1 KENNEDY J: On 3 February 2000, the Court allowed this appeal from a decision of the District Court and ordered that the appellant be granted leave to commence proceedings against the respondent pursuant to s 93D(4) and s 93D(5) of the Workers' Compensation and Rehabilitation Act 1981 ("the Act") for injuries which the appellant claimed to have sustained on 13 June 1996 in the course of his employment with the respondent. These are my reasons for joining in the making of those orders.
2 The Act, as a result of the amendments passed by the Parliament in 1993, imposed considerable constraints upon awards of common law damages in favour of workers against their employers in respect of disabilities suffered by them. By s 93D of the Act, such damages may only be awarded if the disability results in the death of the worker, or if it is a serious disability. Section 93D has since been repealed and replaced by different provisions by an amending Act, No 34 of 1999. It is common ground that the former s 93D continues to apply to the claim in this case.
3 Subject to the Act, by s 93D(2), a disability, for the present purposes, is a serious disability if, and only if, the future pecuniary loss resulting from the disability is of an amount that is at least equal to the prescribed amount. The prescribed amount applicable to the present claim is the sum of $106,382. By s 93D(4), proceedings in which such damages are sought are not to be commenced without the leave of the District Court and, by s 93D(5)(c), leave is to be given if the court determines that the worker is likely to have future pecuniary loss resulting from the disability of an amount that is at least equal to the prescribed amount.
4 The expression "likely" is capable of bearing different meanings. Thus, the first definition given in the Australian Concise Oxford Dictionary is "such as might well happen, or be or prove true, or turn out to be the thing specified". The second definition given is "probable". The first definition is obviously broader than the second. Whether the expression is used in its broader or in its narrower sense depends upon the context in which it is to be found, as the authorities clearly indicate - see Tillmann's Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 27 ALR 367, at 380 - 381; Jungarrayi v Olney (1992) 105 ALR 527, at 538; Transport Ministry v Simmonds [1973] 1 NZLR 359, at 363; Port Nelson Ltd v Commerce Commission [1996] 3 NZLR 554, at 562 - 3; and compare Australian Telecommunications Commission v Krieg Enterprises Pty Ltd (1976) 27 FLR 400, at 410; and Boughey v The Queen (1986) 65 ALR 609, at 611. And see also Mayne v Mayne Nickless Ltd, unreported, FCt SCt of WA; Library No 960223; 26 April
(Page 5)
- 1996. In the context of s 93D, it is the broader sense which has rightly been adopted as the meaning of "likely" in s 95D(5)(c), and the expression should be taken to mean "a real and not a remote chance or possibility, regardless of whether it is less or more than 50 per cent" - per Deane J in Tillman's Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (supra).
5 On 13 June 1996, in the course of his employment with the respondent, the appellant was assisting with the loading of furniture and household goods into a container. He was lying on top of the load in the container, some 6.5 to 7 feet above the floor of the container. While endeavouring to lift a lawn mower, which had been passed up to him by a fellow employee, he experienced an acute pain in his lower back. He reported the incident to the respondent and later sought medical attention. His evidence is that he attempted to keep working, although in pain, for about two weeks or so; but he had not been able to work for the respondent as a furniture removalist since that time. It had, he said, been his intention to remain in the employment of the respondent, or in similar employment, until the normal retirement age of 65 years. His evidence was that, had he been employed as a furniture removalist by the respondent at the time of swearing his affidavit on 14 January 1999, he would have been receiving about $500 net per week. In addition, he would have been receiving superannuation contributions at the normal statutory rate of 7 per cent of his gross weekly earnings of approximately $600. The figures provided by the respondent indicate that, for 13 weeks prior to the accident, the appellant's average gross weekly pay was $518.23 and his net weekly pay was $428.15, fluctuating in the latter case from $588 down to $327 per week.
6 As the learned Chief Judge of the District Court observed in his judgment, it is necessary in applications of this nature for the court to act upon affidavit evidence, and on such evidence it is not only difficult, but also inappropriate, to attempt to resolve material conflicts. This is especially the case where questions of credibility arise. His Honour pointed out that, in order for the appellant to prove damages equal to or exceeding the prescribed amount, having regard to his age (38), he would need to establish a net weekly loss to age 65 of approximately $150 a week. On the whole of the evidence before him, his Honour held that this figure had not been established.
7 In his reasons for judgment, his Honour set out a number of passages in the reports of the five medical specialists which were in evidence before him. They are not entirely consistent with one another, as is only
(Page 6)
- to be expected in matters of this nature where the outcome depends upon expressions of opinion, and particularly where those opinions must be based to a significant degree upon what the specialists are told by the claimant.
8 The evidence indicates that, on leaving school in New South Wales at the age of 17, having completed Year 11, the appellant commenced working as a trades assistant in electro-plating; but he left that work due to his developing rashes. He has subsequently worked as a storeman, a labourer, a shunter, a forklift driver, a welder and a furniture removalist.
9 Dr A C Harper, an occupational physician, diagnosed the appellant's problem as chronic low back pain, which he considered probably to be of facet joint origin. The appellant also displayed symptoms of depression. Dr Harper attributed his symptoms and disability to his accident. Prior to the accident he had been free of low back pain. He found the appellant to be permanently incapacitated for his pre-accident work as a furniture removalist and for regular labouring occupations which involved heavy lifting, bending, twisting and carrying. Although Dr Harper found him to be capable of full time work in a non-manual capacity, he indicated that he would have to avoid prolonged sitting, lifting, twisting, bending and jolting, and accordingly his employability had been "very significantly compromised as he is no longer capable of the majority of the jobs with which he has had experience". Dr Harper was of the view that the appellant required training for an alternative career.
10 The extent of the appellant's permanent disability of the thoraco-lumbar spine was assessed by Dr Harper as 15 per cent loss of effective function. He also noted the possibility that the accident had accelerated degenerative changes in the appellant's lower back. His prognosis was for a continuation of the appellant's susceptibility to low back pain and a continuation of the disability precluding him from regular manual work.
11 The appellant also obtained a report from an orthopaedic surgeon, Mr J E Crockett. In the latter's opinion, the accident had caused a sprain of the right sacroiliac joint, which had become chronic. He confirmed that there were no pre-existing problems in the area of injury. He indicated that the appellant's symptoms and signs correlated well, and that he did not think there was significant psychological overlay which would tend to any deliberate exaggeration of his symptoms. The appellant's back, in his opinion, has been left susceptible to further injury and to an exacerbation of discomfort by inadvertent use, or repeated use, such as
(Page 7)
- bending or lifting, although he was of the view that any degenerative change in the future would not be due to the injury. This is not to say, however, that the likelihood of an added impact of the work related injury upon future degenerative changes should not be taken into account in any assessment of damages.
12 Mr Crockett did not consider the appellant to be sufficiently fit to return in the future to his former job. He expressed the view, however, that he would be fit for non-manual work in which he could avoid lifting, bending, stooping or working in confined spaces. He should have the opportunity, Mr Crockett suggested, to alternate between sitting and standing positions in any job and he will need to exercise general back care. He thought the appellant would be fit for such non-manual jobs on a full time basis, but excluding overtime. He believed, however, that the appellant's chances of securing a job on the open market had been reduced. His independence has also been reduced, in that he will require help in the future with heavier jobs around his house and garden, and he will also continue to have some problems with longer journeys. Mr Crockett expressed the view that the appellant required vocational assistance with regard to his rehabilitation.
13 The medical reports obtained by the respondent were substantially less favourable to the appellant than the previous two, which had been provided by the appellant. Thus, Dr J R Suthers, an occupational physician, believed that the appellant's prognosis remained good, and he expected that, after the medico-legal issues had been resolved, he would make a full recovery. While acknowledging that he had ongoing symptoms of pain, contrary to the view of Dr Harper, Dr Suthers indicated that he did not believe they were necessarily the result of the alleged original workplace incident. He considered that there was probably very little pain of an organic origin.
14 In a later report, Dr Suthers expressed his belief that the appellant was fit to work full time as a sales assistant at Marlows, at Coventrys or in a fishing tackle shop, that he was fit to work full time as a computer parts assembler, as a mail sorter, as a parking inspector and as a photographic processor. It is noted, however, that the appellant's earlier work trials in a fishing tackle store and at Marlows proved shortlived. No offer of employment was made to him at the conclusion of his work trial at Marlows. He has no higher educational or trade qualifications. His previous work has involved manual labour, requiring a high degree of physical fitness and mobility. The evidence of Dr Suthers is in conflict with the views expressed by Dr Harper.
(Page 8)
15 Mr R C Edibam, an orthopaedic surgeon, expressed himself as being at a loss to explain why the appellant had such significant ongoing symptoms which were disabling him and preventing him from returning to any former work activity, apart from the fact that he may have psychosomatic problems, and that his pain may be psychogenic. He expressed the view that the appellant could return to work at his original occupation as he was not convinced that there was any ongoing pathology in his lumbar spine to restrict his work activities. His evidence is also in conflict with that of Dr Harper and of Mr Crockett.
16 Dr S D Febbo, a psychiatrist, indicated that it was his opinion that the appellant was not incapacitated by reason of the presence of a current psychiatric disorder and he was of the view that none of the occupations suggested above would be contra indicated from a psychiatric perspective. The latter limitation is significant.
17 His Honour does not appear to have given consideration to the differing views expressed in the medical reports. As previously noted, it is not the task of the court, under s 93D of the Act, to resolve conflicts, especially where, as here, it is apparent that the credibility of the appellant must be in issue in relation to the nature of his disability as told to the various doctors. It will usually be appropriate, and it is in this case, where there is material conflict or divergence in the evidence, to act on the view reasonably open on the evidence which most favours the appellant - see Sampson v Industrial Progress Corporation Pty Ltd, unreported; FCt SCt of WA; Library No 970058; 21 February 1997 and Lend Lease Employer Systems Ltd v Lydon, unreported; FCt SCt of WA; Library No 980088; 27 February 1998. Nor can it be said that a worker is not "likely" to have the necessary future pecuniary loss because a favourable medical report is opposed to an unfavourable report. An application for leave to bring proceedings does not provide an appropriate forum to embark upon a full hearing and to arrive at firm factual findings.
18 The Court was here presented with a case in which a 38-year-old man is now incapacitated from undertaking the types of employment in which he has been engaged since leaving school at the age of 17. This is supported by the evidence of Dr Harper and Mr Crockett. He is not trained to pursue any other occupation. On this basis, he will probably face significant difficulties in obtaining, and in retaining, suitable employment in the future, and the likelihood is that he will face periods of unemployment. In all the circumstances, I am satisfied that he has a real, and not a remote, chance or possibility of establishing that his loss will average $150 or more per week, including lost superannuation benefits. It
(Page 9)
- is therefore "likely" that the appellant's future pecuniary loss will exceed the prescribed amount.
19 It was for the foregoing reasons that I joined in allowing this appeal.
20 IPP J: I agree with the reasons of Kennedy J and have nothing further to add.
21 WHEELER J: I have had the advantage of reading in draft the reasons of Kennedy J. I agree and having nothing to add.
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