Forsyth v Western Metals Zinc Nl - [2002] WADC 198

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: FORSYTH -v- WESTERN METALS ZINC NL [2002] WADC 198

CORAM: MARTINO DCJ

HEARD: 4 SEPTEMBER 2002

DELIVERED : 20 SEPTEMBER 2002

FILE NO/S: CIV 401 of 2002

BETWEEN: PHILIP JOHN FORSYTH
Plaintiff
AND
WESTERN METALS ZINC NL
Defendant

Catchwords:

Issue estoppel - Abuse of process - Decision by Review Officer on application under Workers' Compensation and Rehabilitation Act 1981 that plaintiff worker not guilty of serious and wilful misconduct - Whether defendant can plead that plaintiff's injury caused or contributed to by his negligence

Legislation:

Workers' Compensation and Rehabilitation Act 1981

Result:

Application to amend defence partially successful

Representation:

Counsel:

Plaintiff: Mr M A Tedeschi
Defendant: Mr A J Adam

Solicitors:

Plaintiff: Taylor Smart
Defendant: Jackson McDonald

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

Blair & Ors v Curran (1939) 62 CLR 464
Davey v Ron Farris Real Estate Pty Ltd & Anor [2000] WASCA 58
Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404
Hazart v Rademaker (1993) 11 WAR 26
Kuligowski v Metrobus [2002] WASCA 170
McNair v Press Offshore Ltd & Anor (1997) 17 WAR 191
Richards v Faulls Pty Ltd (1971) WAR 129
Rowe v Reynolds (1910) 12 WALR 75

Case(s) also cited:

Bride And Bride v Peat Marwick Mitchell [1989] WAR 383
Chamberlain v Deputy Commission of Taxation (ACT) (1998) 164 CLR 502
Commissioner for Railways v Ruprecht (1979) 25 ALR 481
Commonwealth v Verwayen (1990) 170 CLR 394
Dallal v Bank Mellat [1986] 1 QB 441
Effem Foods Pty Ltd v Trawl Industries of Australia Pty Ltd (in liq) (1993) 115 ALR 377
Egri & Anor v DRG Australia Ltd (1988) 19 NSWLR 601
Kuligowski v Metrobus [2000] WADC 251
McKechnie v Campbell (1996) 17 WAR 62
Moore & Ors v Inglis (1976) 50 ALJR 589
Noack v BGC (Australia) Pty Ltd [1998] WAIRC 253
Onetech Pty Ltd v Shaw [1999] WASCA 289
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Ramsay v Pigram (1968) 118 CLR 271
Ricardo Lessur-Miller (aka Walter Levinge) (1990) 47 A Crim R 111
Roser v Immigration Review Tribunal (No.2) (1992) 29 ALD 182
Simon Scotcher v Moltoni Corporation, unreported; Compensation Mag Ct of WA; Library No 930; 11 July 1997
Simpson v Advantage Supermarkets Pty Ltd, unreported; DCt of WA; Library No D990076; 1 April 1999
Somodaj v Australian Iron and Steel Ltd (1963) 109 CLR 285
Taylor v Ansett Transport Industries Limited & Anor (1987) 18 FCR 342
Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc. (1988) 84 ALR 337
Tony Sadler Pty Ltd v McLeod Nominees Pty Ltd (1994) 13 WAR 323
Tringali v Stewardson Stubbs & Collette Ltd (1965) 66 SR (NSW) 335
Unioil International Pty Ltd & Ors v Deloitte Touche Tohmatsu & Anor (No.2) (1997) 18 WAR 190
Waddington v Silver Chain Nursing Association [1998] WASCA 331
West & Ors v Jackson McDonald (a firm) [2001] WASC 198

MARTINO DCJ: This is an appeal by the defendant against a decision of a Registrar delivered on 7 August 2002 dismissing the defendant's application to amend its defence. The hearing of the appeal is a hearing afresh of the defendant's application. Hazart v Rademaker (1993) 11 WAR 26
The plaintiff was employed by the defendant as an underground supervisor. The defendant is a mining company which operated the Goongewa Mine near Leinster. The plaintiff suffered injury in the course of his employment by the defendant when moving a 30 tonne truck which had a punctured right tyre at a level of the mine approximately half way down the mine. The plaintiff endeavoured to move the truck by having it pushed from behind by a bogger while the front of the truck was elevated by the bucket of another bogger. The plaintiff was in the cabin of the truck as it was being moved, having started the vehicle's engine so that its brakes did not lock. He was injured when the front of the truck fell to the ground.
The plaintiff made claim against the defendant for compensation under the Workers' Compensation and Rehabilitation Act 1981. The defendant did not dispute that the plaintiff was injured but denied liability to pay compensation on the ground that the injuries suffered by the plaintiff were caused by his serious and wilful misconduct. Section 22 of the Workers' Compensation and Rehabilitation Act 1981 provides:
"If it is proved that the disability of a worker is attributed to his —
…
(c)other serious and wilful misconduct,
any compensation claimed in respect of that disability shall be disallowed unless the disability results in death or serious and permanent disablement."
The dispute as to the plaintiff's claim for workers' compensation went to a hearing before Review Officer D K Spivey on 28 and 29 May 2001. On 6 June 2001 Review Officer Spivey delivered a decision in which he rejected the defendant's denial of liability to pay compensation. The defendant appealed against that decision. That appeal was heard by Compensation Magistrate P M Hogan on 14 January 2002. On 29 January 2002 the appeal was dismissed. Both parties were legally represented at the review hearing and at the appeal.
By his action in this Court the plaintiff claims damages for personal injuries arising out of the accident. By his statement of claim the plaintiff contends that his injuries were caused by the negligence, breach of contract and breach of statutory duty of the defendant. The defendant's application is to amend its defence to add the following paragraphs to its defence.
"4. In the alternative to paragraph 2 herein, the plaintiff's injuries (which are not admitted) were wholly caused by his own negligence.
Particulars of the negligence
The plaintiff was negligent in that he:-
(a)engaged in the conduct described in paragraphs 9 and 10 of the statement of claim, which is not admitted, ("the conduct") when he had not been instructed to do so and when he knew, or ought to have known, that the conduct was dangerous;
(b)engaged in the conduct without the authorisation of the defendant and when he knew, or ought to have known, that the conduct was dangerous;
(c)engaged in the conduct without conducting or causing to be conducted a job safety analysis when such analysis would have alerted him to the dangerousness of the conduct;
(d)failed to have any, alternatively any proper, regard to the safety of the conduct when such regard would have dissuaded him from engaging in the conduct;
(e)chose to move the truck in a manner wholly designed by him when he knew, or ought to have known that that method was dangerous;
(f)ignored the warnings of Michael Waymouth, Tony Occhipinti and Darryl Young, other employees of the defendant, that the conduct was dangerous;
(g)ignored an instruction by Mr Young to leave the truck where it was until such time as a safe method of retrieval could be employed; and
(h)failed to secure the truck to the bogger by means of chains.
5.In the further alternative to paragraph 2 herein, if the plaintiff's injuries (which are not admitted) were caused or contributed to by the negligence of, other breach of duty of or breach of contract by the defendant (which are denied), they were caused or significantly contributed to by the negligence of the plaintiff.
Particulars of negligence
The defendant repeats the particulars to paragraph 4 herein."
The plaintiff contends that the amendments, other than particular (h), should not be permitted because they raise issues that the defendant is estopped from raising by reason of the decision of Review Officer Spivey and because they are an abuse of process by reason of Review Officer Spivey's decision.
The principles of issue estoppel are set out in the following well known passage:
"A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or restrained or that rights be declared.
…
Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. In matters of fact the issue estoppel is confined to those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established. Where the conclusion is against the existence of a right or claim which in point of law depends upon a number of ingredients or ultimate facts the absence of any one of which would be enough to defeat the claim, the estoppel covers only the actual ground upon which the existence of the right was negatived.
…
But matters of law or fact which are subsidiary or collateral are not covered by the estoppel. Findings, however deliberate and formal, which concern only evidentiary facts and not ultimate facts forming the very title to rights give rise to no preclusion. Decisions upon matters of law which amount to no more than steps in a process of reasoning tending to establish or support the proposition upon which the rights depend do not estop the parties if the same matters of law arise in subsequent litigation": Blair & Ors v Curran (1939) 62 CLR 464 per Dixon J at 531 ‑ 533.
A decision of a Review Officer is a judicial determination for the purposes of issue estoppel: McNair v Press Offshore Ltd & Anor 1997) 17 WAR 191; Kuligowski v Metrobus [2002] WASCA 170.
The principles of abuse of process were summarised by Templeman J in Davey v Ron Farris Real Estate Pty Ltd & Anor [2000] WASCA 58, applying Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404
"[5]"The elements which are to be extracted from Haines' case are these: first, the issue which is to be determined must have been determined in an earlier case in which the party propounding the issue was unsuccessful. Secondly, the issue must be one which was necessarily determined in the earlier case and one of importance to the final result. Thirdly, the issue must have been argued properly. Fourthly, the decision disposing of the issue in the earlier case must have been a final issue; that is, not subject to appeal. That consideration would not be relevant if, notwithstanding the absence of an appeal, it is clear that some earlier decision or binding authority has been overlooked which might have affected the result.
[6]Although those principles were set out by Hunt CJ, he concluded by saying that there could be no definitive statement of the circumstances which would inevitably lead to a finding of an abuse of process."

The Review Hearing

The defendant's case at the review hearing was that the method used by the plaintiff to attempt to move the truck was unsafe, was adopted after the plaintiff had been told by the underground manager to leave the truck where it was and that the plaintiff should have completed a Job Hazard Analysis before commencing the task of moving the truck.
In support of its case the defendant called evidence at the review hearing from Daryl John Young, the defendant's underground mine manager, Michael Alexander Waymouth and Anthony Paul Occhipinti, both of whom were underground miners who were supervised by the plaintiff on the day of the accident and David John Bies, the defendant's safety and health superintendent. Messrs Young, Waymouth and Occhipinti's evidence was given by telephone. Mr Young's evidence was that he overheard the plaintiff telling his crew how he proposed to move the truck and that he told the plaintiff that his proposals were not a good idea as they were dangerous. He also heard Mr Occhipinti and Mr Waymouth express concerns about the plaintiff's proposals.
Mr Young's evidence was that he told the plaintiff to leave the truck where it was as it was not affecting production. Mr Young denied telling the plaintiff to get the truck out the best way he could.
Mr Waymouth and Mr Occhipinti gave evidence that they informed the plaintiff that his proposed method of moving the truck was not a good idea.
Mr Bies gave evidence that the plaintiff had been given an induction and training in his supervision role which meant that he would have been aware of the need to complete a Job Hazard Analysis to identify risk and determine the best method for undertaking serious tasks. It was Mr Bies' view that the plaintiff should have completed a Job Hazard Analysis prior to commencing to move the truck, although he had never seen a Job Hazard Analysis completed for the removal of a truck from underground.
The plaintiff's evidence at the Review Hearing was that Mr Young told him to leave the truck and that he would arrange for fitters to repair the punctured tyre underground. After he was told by the maintenance manager that it was too dangerous to repair the punctured tyre underground the plaintiff spoke again to Mr Young who instructed the plaintiff to get the truck out "the best way you can". The plaintiff's evidence was that he discussed the method of removing the truck with Mr Waymouth and Mr Occhipinti and that neither expressed concern about the proposed method of moving the truck before the accident.
The plaintiff's evidence as to the use of Job Hazard Analysis forms was that they were completed for the removal of remote control boggers from underground and that they were to be completed before a hazardous job was to be undertaken. However in practice this was not done for tasks other than the removal of boggers from underground.
The plaintiff's evidence was that he had not previously undertaken the removal of a truck using the method he adopted on the day of the accident when working at Goongewa Mine. He had however used that method at other mines.
There was also evidence before the Review Officer from Mr Hans George Queisser who was employed at the Goongewa Mine by Monodelphous Pty Ltd as a heavy equipment underground fitter. Mr Queisser's evidence was that on the day of the accident he decided that he could not repair the punctured tyre underground.
Mr Queisser also gave evidence that he thought he had seen a truck removed from underground in the way that they plaintiff attempted and also on occasion without the use of chains. He also gave evidence that he had never seen a Job Hazard Analysis form completed for these tasks although he was aware that the form was completed where a remote control bogger was to be removed.
In his reasons Review Office Spivey expressed the following conclusions:
60.The applicant testified that there was no set procedures governing the removal of a truck from underground. He said that he undertook the task after Mr Young, his immediate supervisor, told him to get the truck out the best way he could. This sanctioning giving the applicant to go ahead was strongly denied by Mr Young. In evidence Mr Young vouched for the applicant's conduct advising that he had always obeyed instructions. This was probably well demonstrated by virtue of the fact the applicant was instructed by Mr Young at the time of their first meeting on the morning of 12 June 2000 to leave the truck where it was. Upon the issuing of that instruction the applicant and his crew went about their normal work. According to the applicant he approached the fitters and spoke to Mr Maloney who refused to repair the truck underground. This evidence was supported by Mr Queisser who went underground and assessed the situation before deciding that it was not possible to repair the truck underground unless it was relocated onto the decline road.
61.Evidence given by Mr Waymouth and Mr Occhipinti was at odds with the applicant's in that they expressed concern at the method of retrieval proposed by the applicant. It is to be recalled that applicant said that at no time prior to the accident did either of these individuals utter any concern regarding the retrieval of the truck. Of course, any discrepancy in this part of the evidence is of little consequence to the issue of misconduct except that it challenges the applicant's credibility. The applicant's credibility was also brought into question by virtue of the discrepancy with the evidence given by Mr Young. However, the evidence given by Mr Queisser was confirmatory with much of that of the applicant.
62.In my view the applicant impressed as an honest straightforward individual who gave his evidence in a manner which imparted no reason to doubt his veracity. During closing submissions the applicant's representative speculated that Mr Young may have been censured had it been shown that he told the applicant to go ahead and remove the truck given the events which followed where the applicant suffered injury by accident. However, there was no evidence adduced to support this contention.
63.Messrs Waymouth, Occhipinti and Young gave their evidence via telephone and as such it was somewhat difficult to assess what weight I should give to their evidence compared to the oral sworn testimony of the applicant at the hearing where I was well placed to assess his credibility. However, Mr Waymouth and Mr Young left me with the impression there was a defensive tenor about their tone. Of course, this could be an impression which was ill conceived by me. This aside, their (sic) was little else to resolve the impasse which was created by the discrepancy in evidence between Mr Young and the applicant as to whether an instruction was given to move the truck to the surface. Clearly, if such an instruction was given then the applicant was not guilty of misconduct. Based on the evidence presented I am not persuaded that such an instruction was not given to the applicant as I preferred the applicant's evidence to that of Mr Young. Therefore, the respondent's defence in regard to this issue must fail.
64.However, even if I am wrong and the applicant had disobeyed an instruction given by Mr Young not to retrieve the truck, and it amounted to misconduct, was that misconduct serious?
65.From the authorities detailed earlier in these reasons, misconduct would be serious if its probable consequences were perilous to the applicant's well-being and that the action undertaken would, if contemplated by a reasonably prudent person, result in injury.
66.The applicant testified that there was no set procedures in place to deal with the retrieval of a truck from underground. In my view, the evidence in this regard was consistent. This applicant also testified that a Job Hazard Analysis was only completed, in regard to the retrieval of machinery from underground, where the machinery involved was a remote control bogger. Evidence was given by a number of witnesses suggesting that a Job Hazard Analysis should have been completed by the applicant and that it was company policy to do so. This was a point conceded by the applicant, but stated that it was not followed in practice. Perhaps the most conclusive evidence that there were no formal instructions or set procedures was the fact that following the accident Mr Bies completed the 'Significant Incident Report' and recommended:
•A risk analysis is undertaken (sic) to identify all hazards associated with the removal of all disabled equipment from the mine.
•Develop a Standing Instruction to clearly define standards and responsibilities required for the removal of disabled equipment from the mine.
67.On the basis that Mr Bies deemed it necessary to make the above recommendations it is, in my view, reasonable to deduce the procedures were not in place at the time of the accident and so I find.
68.It was apparent from the evidence given by Mr Waymouth and Mr Occhipinti that they were opposed to removing the truck as proposed by the applicant on the basis they considered it unsafe. It is to be recalled they had never had experience in the method of retrieval proposed by the applicant. Conversely the applicant said he had seen the method of retrieval proposed by him undertaken previously at other mines. This method of retrieval was supported by Mr Queisser. With the benefit of past experience relating to this method of retrieval I do not consider it could be said that upon contemplation by a prudent person the actions of the applicant in attempting to retrieve the truck as he did could be said to be likely to jeopardise his safety. In fact a fair-minded person may have assessed the risk of injury as improbable or remote.
69.Therefore, if the applicant had been guilty of misconduct I do not consider the misconduct to be serious.
70.For the respondent to be successful by way of a Section 22 defence (proof of which rests with the respondent) the applicant's misconduct must be both serious and wilful. It is not enough to be one or the other. By my earlier findings it is not necessary to explore the question of "wilful". However, for the sake of completeness it is appropriate to do so.
71.However, if I am wrong and the applicant was guilty of serious misconduct, was it wilful?
72.No evidence was adduced by the respondent to suggest that mischief by way of injury would result from the applicant's alleged serious misconduct. Whilst evidence was given by Messrs Waymouth, Occhipinti and Young that the retrieval of the truck was unsafe, no firm evidence was adduced to support their stance. Bearing in mind the applicant had experience of this being successfully undertaken previously, I do not consider the task was carried out under the supposition something untoward may occur. Likewise, none of the evidence which I accept would demonstrate that the applicant undertook the task in the knowledge that what he was doing was wrong or was likely to result in him suffering injury.
73.It follows that were it necessary to do so I would find that the applicant's actions were not what could be described as wilful misconduct.
74.Putting the above together I reiterate and I find as a fact that applicant's disability of 12 July 2000 was not attributable to his serious and wilful misconduct."

The defendant's appeal to the Compensation Magistrate was on grounds that the Review Officer erred in law in making the findings that he did. An appeal to a Compensation Magistrate is limited to a question of law – s 84ZN Workers' Compensation and Rehabilitation Act 1981. The appeal was dismissed.

Issue estoppel

The test of whether a worker is guilty of serious and wilful misconduct is a different test to that of whether a plaintiff employee has been guilty of negligence. Serious and wilful misconduct is more than a mere breach of duty of care owed by the employee: Richards v Faulls Pty Ltd (1971) WAR 129. Disobedience of an order can constitute misconduct: Rowe v Reynolds (1910) 12 WALR 75 per Parker CJ at 80.
In determining whether any issue estoppel arises as a result of the Review Officer's finding it is necessary for me to determine what findings of fact were "the actual ground" upon which the Review Officer found that the defendant had not established serious and wilful misconduct.
Although there are some difficulties in the method of expression adopted by the Review Officer I conclude that his finding was that he accepted the evidence of the plaintiff that he was told by Mr Young to get the truck out "the best way you can". On that basis, the Review Officer concluded that there was no misconduct – par 63 of the Review Officer's reasons.
I conclude therefore that the defendant is estopped from asserting that Mr Young did not give that instruction. I read proposed particulars (a), (b) and (g) as seeking to make that assertion. I find that the defendant is estopped from so pleading.

Abuse of process

The Review Officer preferred the evidence of the plaintiff to that of the defendant's witness at the Review Hearing.
However, the conclusions of the Review Officer on matters other than the issue of what instruction was given by Mr Young were not "necessarily determined" in the Review Officer's decision. I conclude therefore that it is not an abuse of process for the defendant to seek to raise these other matters.

Summary

For these reasons I do not allow the proposed amendments to add particulars (a), (b) or (g).
I interpret those paragraphs as seeking to assert that Mr Young did not tell the plaintiff to get the truck out the best way he could. If the defendant wishes to make some other allegations by those paragraphs it should plead the allegations with precision and make another application for leave to amend.
When considering its defence the defendant should consider drawing it in accordance with proper principles of pleading. The function of pleadings is to identify matters in dispute. The defendant does not admit anything in its defence, when it is clear from the Review Officer's reasons that in fact a number of matters are not in dispute.
I allow the other proposed amendments.