| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : GEMELLI -v- ARCHFIELD HOLDINGS PTY LTD [2004] WADC 193 CORAM : O'BRIEN DCJ HEARD : 23 AUGUST 2004 DELIVERED : 24 SEPTEMBER 2004 FILE NO/S : CIVO 148 of 2004 BETWEEN : ROBERT GEMELLI Applicant
AND
ARCHFIELD HOLDINGS PTY LTD
Respondent
Catchwords: Application for leave to commence proceedings pursuant to s 93D(4) of the Workers' Compensation and Rehabilitation Act 1981 - Turns on own facts
Legislation: Workers' Compensation and Rehabilitation Act 1981
Result: Leave to commence proceedings granted
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Representation:
Counsel:
Applicant : Mr B L Nugawela
Respondent : Mr J R Wilson
Solicitors:
Applicant : Bradley & Bayly
Respondent : Srdarov Richards Burton
Case(s) referred to in judgment(s):
Glen-Craig Villages Pty Ltd v Donaghy (1992) 7 WAR 122
Newcombe v AME Properties Ltd (1995) 14 WAR 259
Sampson v Industrial Progress Corporation Pty Ltd, unreported; FCt SCt of WA; Library No 970058; 21 February 1997
Thomas v O'Shea (1989) A Tort Rep 80-251
Waddington v Silver Chain Association (1998) 20 WAR 269
Whittall-Wood v Drake Overload, unreported; FCt SCt of WA; Library No 920279; 22 May 1992
Case(s) also cited:
Andrews v Electricity Commission, unreported; DCt of WA; Library No 4454; 22 May 1995
Eng Mee Yong v Letchumanan [1980] AC 331
Lend Lease Employer Systems Ltd v Lydon, unreported; FCt SCt of WA; Library No 980088; 27 February 1998
Mackenzie v Disability Services Commission, unreported; DCt of WA; Library No 4975; 28 June 1996
Pemberton v Chappell (1987) 1 NZLR 1
Pollitt v Midland Brick Co (1995) 14 SR (WA) 251
Re Monger; ex parte Cross [2004] WASCA 176
Sgro v New Cement Co Pty Ltd (1995) 15 SR (WA) 44
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1 O'BRIEN DCJ: This is an appeal against a Registrar's decision to refuse the applicant's application for leave to commence proceedings against his former employer ("the respondent") pursuant to s 93D(4) of the Workers' Compensation and Rehabilitation Act 1981 as enacted prior to 5 October 1991 ("the Act"). The applicant was employed by the respondent as a car salesman/yard manager when he was injured on 5 October 1998. A writ of summons was issued on 11 April 2003 and a statement of claim filed on 23 March 2004. Accordingly, proceedings have purportedly been commenced without leave. The applicant's counsel accepts that these proceedings are a nullity: Newcombe v AME Properties Ltd (1995) 14 WAR 259. The parties do not require me to make any orders in relation to those proceedings.
Legislation 2 Section 93D of the Act relevantly provides: 3 The prescribed amount as from 1 July 2004 is $139,995. It is not seriously contested that if the applicant is unable to perform his
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pre-accident work or obtain other work then his future pecuniary loss will be at least $139,995. Accordingly, the parties do not require me to set out the usual calculations of estimated future pecuniary loss. However, for the record, on the basis of the submissions made on behalf of the applicant, I would concur with that assessment.
The issue 4 The issue for determination is whether the applicant has discharged his onus of proof as set out in Thomas v O'Shea (1989) A Tort Rep 80-251 at 68,701: "The legal onus of proof of loss of earning capacity rests, of course, on the plaintiff, but once the plaintiff has proved that he has lost his pre-accident earning capacity and has been unable to find alternative employment, or that his condition has prevented him finding alternative employment, an evidentiary burden is cast on the defendant to show what alternative employment opportunities were open, including the state of the labour market and the likely earnings." 5 In Sampson v Industrial Progress Corporation Pty Ltd, unreported; FCt SCt of WA; Library No 970058; 21 February 1997, Parker J said at 5: "As appears from these words, at trial it would be necessary for the appellant to show first that he has lost his pre-accident earning capacity and, secondly, that he has been unable to find alternative employment or that his condition has prevented him from finding alternative employment." 6 The respondent submits that there is no evidence that the applicant has applied for any jobs and been refused employment or that his condition has prevented him from finding alternative employment. 7 There is no evidence before me that the applicant has applied for any specific jobs. There is evidence before me that he had made enquires of car sales businesses as to what his salary would be if he were to be employed in his pre-accident employment. 8 However, the applicant submits that the medical evidence establishes that his disability is such that the court can make the determination that his condition has prevented him from finding alternative employment.
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The legal principles
9 Each party filed an outline of submissions summarising the legal principles and these are not in dispute 10 By way of summary, the legal principles are these. 11 The decision of Sampson v Industrial Progress Corporation Pty Ltd, (supra) is authority for the following propositions: 1. The onus is on the applicant to satisfy the court that he is likely to have future pecuniary loss at least equal to the prescribed amount. 2. The term "likely" embodies the concept of a real and not remote chance. 3. The court is required to make a preliminary assessment, by reference to affidavits of the measure of damages for future pecuniary loss which is likely to be awarded to the applicant in the event of a trial. 4. The court is not permitted to resolve conflicts of affidavit or medical evidence but merely has to find that the applicant has some prospect of proving that he will suffer future pecuniary loss as a result of the work-caused injury equal or greater than the prescribed amount: Whittall-Wood v Drake Overload, unreported; FCt SCt of WA; Library No 920279; 22 May 1992; Glen-Craig Villages Pty Ltd v Donaghy (1992) 7 WAR 122. 5. If there is a material conflict in the evidence before the court then the court should approach the evidence by acting "on the view reasonably open on the evidence which most favours the applicant." (Waddington v Silver Chain Association (1998) 20 WAR 269 at 285) approving Parker J in Sampson (supra).
The evidence 12 The applicant filed two affidavits in support of the application for leave sworn on 9 June 2004 (the first affidavit) and 2 August 2004 (the second affidavit). The applicant deposed that his duties employed by the respondent included selling cars, opening and closing the premises, detailing cars and other manual work as and when required. At the time he was working full time for the respondent. 13 The applicant deposed that he continued working as a car salesman/yard manager for the respondent after the accident "performing modified duties" until the respondent's business closed down in 2001.
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14 The applicant deposed that as a result of his accident caused injuries, he was unable to perform his full pre-accident duties and has been unable to obtain and sustain alternative suitable employment.
15 The applicant deposed that prior to the injury he had "a good and solid work history" and at the time of the accident was earning approximately $50,000 gross per annum. It is not necessary to refer in further detail to the applicant's financial situation which is well documented in the materials annexed to his first affidavit. 16 In his second affidavit, the applicant deposed that his employment with the respondent involved "not only sales and administration but included manual tasks such as lifting the heavy gates at the premises open and closed, changing car batteries and detailing cars which included vacuuming inside the cars and a significant amount of bending and stretching ..." He deposed that the respondent's car yard was a "small operation" and he had to be "hands on and attend to whatever manual task required attention". 17 He deposed that: "There was a significant amount of manual work involved in my job including a significant amount of repetitive bending, stretching, lifting." 18 In his second affidavit, the applicant explained that his "modified duties" referred to in his first affidavit meant that he "essentially stopped doing many of the manual tasks required" in his job. He was able to perform manual tasks "occasionally" but was not able to sustain them on a regular or repetitive basis and that is still the case. 19 In par 5 of his second affidavit, the applicant outlines the reasons why he is unable to return to his pre-accident employment as a car salesman or yard manager referring to symptoms such as being unable to sit, stand or drive for any lengthy period of time due to severe back pain and the effects of sleeping medication; limited ability to lift, stretch and bend and sustaining such activities on a regular and repetitive basis and being unable to sustain these activities "over a whole day or consecutive days because of the level of [his] back pain". 20 The applicant did not mention in either of his affidavits that from August to December 2002 he worked as a manager in a nightclub. This emerges from information the applicant provided to one of the doctors who examined him. However, he deposed that he "believes" that he is
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unable to work as a bar manager or bar person for the same reasons as he is unable to work in his pre-accident employment as outlined above. There is no evidence that the respondent has made any attempt to apply for any specific job of any description since stopping work as a bar manager in December 2002. 21 However, Dr Schaeffer reported on 23 July 2003 that the applicant "is currently seeking suitable employment". 22 Mr Victor Kizon, the applicant's employer at the time of the accident, swore an affidavit on 26 November 2002 wherein he deposed that the applicant continued to work at the car yard after the accident until 29 August 1999 when the lease expired. He rehired the applicant on 4 September 2000 until August 2001 when he decided to work as a sole trader. 23 He deposed that after the applicant was rehired in 2000, he complained of a sore back and took time off work to attend various specialists. However, prior to then, as far as he was aware, the applicant had not taken any time off work. He also deposed that he was in daily communication with the applicant and prior to being released, the applicant was working full time and "was able to perform all his normal duties". However, it would appear that Mr Kizon was not working at the same site as the applicant and therefore not in a position to personally assess the type of duties carried out by the applicant.
The medical evidence 24 The applicant was born on 27 August 1960 and is now 44 years of age. 25 In 1976 Dr Bryant Stokes performed a laminectomy on the applicant which he believes was for a juvenile large central disc protrusion. However, the medical evidence is to the effect that the applicant has recovered from that operation his present symptoms. 26 Dr L G Blake opined in his report dated 6 September 2000 to VACC Insurance that: "It seems likely that he [the applicant] will continue to experience low back pain and that this will affect his capacity to manage and sustain a range of activities both in the workplace and elsewhere. I mentioned, as an example, his inability since this accident to undertake car detailing duties. These were not a
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formal aspect of his duties as a car salesman, but it fell upon him at times, as did certain extraneous activities as opening the gate. He has now been compromised in a range of physically and posturally demanding activities and this will affect his employability, … he will need to return to employment in a comparably undemanding role if he is to achieve a sustainable return to work. …" 27 There does not seem to be any significant, if any, dispute that the injuries suffered by the applicant are as follows: 1. Disc damage to the lumbar spine; 2. Exacerbation and aggravation of pre-existing lower back condition\bulging of the annulus, disc prolapse and decompression at L4/5; 3. Rendering previously asymptomatic lower back condition symptomatic; 4. Acceleration and aggravation of degenerative disc disease. 28 The applicant had consulted his general practitioner 32 times from 6 October 1998 until 19 August 2003 according to his doctor's report dated 22 September 2003. 29 The applicant was reviewed by Dr Stokes from 4 May 2001 until 10 October 2003 which is the date of his latest report. 30 Spinal fusion has been mooted as a possible treatment but Dr Stokes is of the view that "if fusion is carried out that will purely reduce his pain and not necessarily increase the ability of his back to perform the previous heavy work." The applicant favours conservative treatment and this is generally supported in all the medical reports. 31 Facet joint injections were done in April 2001 on L4/5 and produced some minimal improvement. 32 The medical opinions are unanimously that the applicant's condition is permanent. 33 In his report dated 21 March 2002, Dr Stokes reported that standing and long car driving aggravate the applicant's condition and that the applicant needs increasing medication to alleviate the pain.
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34 In his report dated 20 November 2002, Dr Stokes stated that the applicant is unable to perform his pre-accident work particularly as it involved more than just car selling in a sedentary way.
35 He was of the view that the applicant suffered a permanent injury to his back and the degree of instability that he has at L4/5 is "in the order of approximately thirty per cent (30%) under the current Workers' Compensation and Rehabilitation Act". His reason for making that assessment is that the applicant's activity has been "grossly impaired by his current injury compared to what he was doing previously". 36 Further, Dr Stokes was of the view that there is a significant reduction in flexion of at least 20 per cent in his lumbar spine and also rotation of his lumbar spine gives significant pain when rotating to the right in the reduction of straight leg raising. Dr Stokes assessed a disability of 30 per cent in the applicant's low back. In his report dated 10 December 2002, Dr Stokes expanded on his reasons for the assessment of 30 per cent disability by reference to the applicant's ongoing nocturnal pain and disrupted sleep. 37 In his report dated 19 February 2003, Dr Stokes reported that the applicant was fit to perform employment that did not involve back stress. 38 Dr Alan Home, an occupational physician, reported on 9 April 2003 that the applicant was fit to undertake his pre-accident duties as a car yard manager/used car salesman on a full time basis, and/or, alternative work of a sedentary/semi-sedentary or light manual nature, on a full time basis. 39 The applicant was assessed by Mr H Schaeffer, consultant neurosurgeon, at the request of the respondent's insurers on 21 July 2002. 40 Mr Schaeffer was of the view that the applicant was "an entirely genuine patient". He opined in his report dated 7 August 2002 that: "[The applicant] is permanently unsuitable for work and other activities that involve excessive lifting or other duties that would obviously place a heavy load upon his lumbar spine or work that included sustained or repetitive bending or that which requires to be performed in obviously awkward positions or confined spaces. He does, however, retain the capacity for work of moderate type within these parameters." 41 In his report dated 23 July 2003, Mr Schaeffer referred to the applicant's work as the manager of a nightclub from August to
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December 2002. According to Mr Schaeffer, the applicant described his duties as managerial, involving no heavy physical activities. The applicant told him that he was employed in a full time capacity. The position was not made available in 2003. 42 Mr Schaeffer further opined that the applicant "is unlikely in the future to retain the capacity for employment which involves heavy labouring type work, either in a part time or full time capacity, due to the vulnerable nature of his spinal column". 43 However, Mr Schaeffer was of the view that: 44 Dr Hume, an occupational physician, reviewed the applicant and reported on 9 April 2003 that:
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45 In my view, the various surveillance reports do not impact on the medical opinions one way or the other at this interlocutory stage.
Conclusion 46 At this stage, the evidence on behalf of the applicant (largely the opinion of Dr Stokes) lacks detail and precise medical opinion as to the applicant's work capacity. The medical evidence adduced by the respondent appears on the face of it to be far less equivocal on this issue. However, unlike Dr Stokes, Mr Schaeffer and Dr Home are not the applicant's treating doctors and have performed medico-legal assessments only. This does not necessarily dilute the weight of their opinions but it is a factor to consider when weighing up which opinion to accept. I cannot and should not resolve the difference in medical opinion at this stage. 47 The applicant's stated symptoms are capable of allowing an inference to be drawn that the applicant would be unable to return to work as a car salesman especially given his inability to drive, walk and sit for long periods of time and his chronic pain. 48 The opinion of Mr Schaeffer is to the effect that the applicant has the capacity to work within certain parameters as outlined above and that the applicant has the capacity of his pre-accident employment as a car salesman. In my view, there is a material conflict in the evidence and I should then approach the evidence by acting "on the view reasonably open on the evidence which most favours the applicant": Sampson (supra) per Parker J at 5. Accordingly, applying that test, it is my view that it is likely that the applicant could satisfy a trial judge that he has lost his pre-accident earning capacity. 49 Although the applicant obtained alternative employment as a night club manager between August and December 2002, he deposed that he is now unable to work as a bar manager or bar person because of his present symptoms. Despite there being no evidence of applications for employment by the applicant, it may be reasonable to infer that he would not be successful in obtaining employment given his present symptoms and permanent disability. 50 The applicant is on stronger ground in establishing that his condition has prevented him from obtaining alternative employment given the applicant's sworn evidence as to his present symptoms. Accordingly, it is my view that it is likely, and not remote or fanciful, that the applicant would satisfy a trial judge as to the second limb of the Thomas v O'Shea test. Given that finding, the respondent has the evidentiary burden to
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show what alternative opportunities were open, including the state of the labour market and the likely earnings. The respondent has not adduced any evidence to discharge this evidentiary burden. 51 Accordingly, I would grant the applicant leave to commence proceedings.
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