| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : GUEST -v- NRMA INSURANCE LIMITED [2002] WADC 115 CORAM : VIOL DCJ HEARD : 19, 20 & 21 NOVEMBER 2001 & 24 APRIL 2002 DELIVERED : 20 JUNE 2002 FILE NO/S : CIV 2638 of 2000 BETWEEN : ELIZABETH GUEST Plaintiff
AND
NRMA INSURANCE LIMITED
Defendant
Catchwords: Negligence - Employer's liability - Safety of premises - System of cleaning - Employee falling on floor - Whether breach of duty of care by employer - Cause of plaintiff's fall - Provisional assessment of damages - Effect and operation of s 93F of Workers' Compensation and Rehabilitation Act 1981 considered
Legislation: Occupiers' Liability Act 1985
Workers' Compensation and Rehabilitation Act 1981 (as amended)
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Result:
Plaintiff's claim dismissed - Provisional assessment of damages - Plaintiff entitled to maximum allowable under s 93F of Workers' Compensation and Rehabilitation Act 1981 Representation:
Counsel:
Plaintiff : Mr M E Herron
Defendant : Mr W M Schwikkard
Solicitors:
Plaintiff : Gibson & Gibson
Defendant : Jackson McDonald
Case(s) referred to in judgment(s):
Bicknell v Australian Telecommunications Commission (1993) 10 WAR 373
Dell v Dalton (1991) 23 NSWLR 528
Drakos v Woolworths (SA) Ltd (1991) 56 SASR 431
Hendrie v Rusli [2000] WASCA 249
Southgate v Waterford (1990) 21 NSWLR 427
Wylde v Aristondo, unreported; FCt SCt of WA; Library No 970359; 23 July 1997
Case(s) also cited:
Andjelic v Marsland (1996) 135 ALR 543
Astley v Austrust Ltd (1999) 197 CLR 1
Bowen v Tutte [1990] A Tort Rep 81-043
Jones v Persal & Co [2000] QCA 386
Kocis v SE Dickens Pty Ltd [1996] A Tort Rep 81-382
Kocis v SE Dickens Pty Ltd [1998] 3 VR 408
Nelson v BHP Coal Pty Ltd [2000] QCA 505
Roberts v White [1999] NSWCA 12
Stevens v Head (1992) 176 CLR 433
Wylie v The ANI Corporation Ltd [2000] QCA 314
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1 VIOL DCJ: The plaintiff was born on 21 June 1947 and is therefore 55 years old. At all relevant times, she was employed as a nursing assistant at the Como Nursing Home ("the nursing home"). The nursing home was owned by Forty-Third Valdera Pty Ltd, which company was deregistered in or about July 2001. Because of this, and pursuant to the provisions of s 601A to s 601G of the Corporations Law, the plaintiff has taken action in damages against the defendant. The plaintiff alleges that she was injured in an incident at work ("the incident"), such incident being said to involve a breach of contract and/or negligence and/or breach of statutory duty on the part of the nursing home.
2 The allegations relied on by the plaintiff should be set out in full: "3. It was an implied term of the contract of employment between the Plaintiff and the employer that the employer: (a) would take all reasonable precautions for the safety of the Plaintiff while she was engaged in her work; (b) would not expose the Plaintiff to a risk of damage or injury of which the employer knew or ought to have known; (c) would provide and maintain suitable premises to allow the Plaintiff to work in safety; (d) would take all reasonable measures to ensure the place the Plaintiff worked was safe; (e) would provide and maintain a safe system of work. PARTICULARS
The term is to be implied from the need to give business efficacy to the contract of employment between the parties or alternatively to allow the reasonable or effective operation of the contract of employment between the parties. 4. On or about 15 April 1995 ("the material date") the Plaintiff, whilst in the course of her employment with the employer, was walking along the corridor of the employer's premises to the pan room, when she slipped on a liquid substance on the floor and fell to the floor
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3 It should be noted that in par 4, the expression "a liquid substance" is used - but there is no particularisation as to what substance was said to be involved. This allegation is taken further in par 6(a) ie. when "liquid or water" is referred to as the substance involved. The intention, it seems, is to suggest that the presence of a substance other than water (ie. "liquid"), or water on the floor.
4 These allegations in par 5, par 6 and par 7 are denied by the defendant and the allegations in par 4 are not admitted. 5 In particular, in par 5 of the defence, the defendant pleads as follows: "5. The Defendant denies each and every particular of negligence and breach of statutory duty pleaded in paragraph 6 of the Amended Statement of Claim as if the same were set out herein and traversed separately. Further, the Defendant says that: (a) the floor of the corridor was not wet and/or slippery; (b) warning signs had been placed in the corridor prior to and at the time of the accident indicating that the floor had recently been mopped and cleaned; (c) the Plaintiff was wearing slip-resistant rubber soled shower shoes/boots at the time of the accident." 6 In par 8, par 9, par 10 and par 11, the plaintiff alleges that she suffered two injuries in the accident and thereafter a wide variety of sequelae. These allegations are not admitted by the defendant. 7 The plaintiff also claims that she has suffered "a significant reduction in her earning capacity" (par 12) and has lost superannuation benefits. Special damages are also claimed by the plaintiff. These various claims are denied by the defendant. 8 The defendant alleges that the plaintiff was contributorily negligent in the incident and, in particular, in par 9(a) to par 9(d), pleads as follows: "(a) failed to have any or any proper lookout for and/or to avoid hazards while walking down the corridor;
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(b) failed to take any or any sufficient notice of the warning sign placed in the corridor by the Defendant, its servants or agents; (c) failed to keep proper lookout for hazards in the corridor of which she was or ought to have been aware, including any water or dampness on the floor, particularly as the Plaintiff was aware that the floor had recently been cleaned; (d) failed to take any or any proper care for her own safety in all the circumstances." 9 These allegations are put in issue by the plaintiff in the reply to defence to counterclaim. 10 Pursuant to par 10 of the defence and counterclaim, the defendant pleads that if the defendant was negligent, then the plaintiff's damages should be assessed pursuant to s 93F(1) of the Workers Compensation and Rehabilitation Act 1981 (as amended). Finally, the defendant alleges that the plaintiff breached her contract of employment with the defendant and seeks to set off so much of the counterclaim as would be sufficient to satisfy the plaintiff's claim - such breaches and the basis and right to set off by the defendant are denied by the plaintiff. 11 Much of the evidence centred around the incident itself - there were fundamental issues as to, firstly, the circumstances which existed in the corridor prior to and at the time of the incident, and secondly, what caused the plaintiff to fall. Involved in the resolution of these issues is the determination of the plaintiff's credibility and reliability as a witness and also some of the other witnesses called. 12 The authorities make it clear that in order for a plaintiff to succeed in a claim of this nature, it must be established that: 13 In other words, whether the plaintiff's case is founded in tort, contract or breach of statutory duty, the fundamental elements of the plaintiff's case must be established: See Bicknell v Australian Telecommunications Commission (1993) 10 WAR 373.
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14 I now turn to the evidence relevant to these questions.
15 The plaintiff worked as a nursing assistance for some 15 years until the incident. As a nursing assistant, she did all the various duties associated with caring for patients at the nursing home; these were geriatric patients who had Alzheimer's disease and other similar conditions. She worked various shifts and, on regular occasions, started at 6.30 in the morning. Exhibit A set out the layout of the nursing home. It was effectively in a "U" shape with wide corridors, giving access to various rooms. The plaintiff described the premises as having a concrete floor with large vinyl tiles thereon. The cleaners came in from about 7.00 am to 10.00 am or 11.00 am and their job was to clean the floors and, when they did such cleaning which generally involved mopping, they would put up a variety of warning signs. These signs were in a position to be seen by residents, staff and visitors. 16 Many of the patients were incontinent and it was common for fluids such as urine and faeces to appear on the floors. Staff, including nursing assistants such as the plaintiff, were instructed to clean these areas up whenever, and as soon as, they occurred and a warning sign was required to be put up after the floor had been cleaned and/or mopped. The plaintiff said that she would do this about two to three times a day. The instructions were detailed and under the overall direction of the matron (T46). 17 The patients were showered in the showers noted in rooms 5 and 6 on the plan. When this occurred, the plaintiff would wear what she described as "wellington boots" which were purchased through someone who used to get them for his job in a dairy. These were apparently bought and used in the dairy for the same basic purpose as in the nursing home ie. to avoid slipping on wet surfaces - the boots had special treads for this purpose. The bathroom had ceramic non-slip tiles. The plaintiff said that her shoes had a good tread on them with no cracks. 18 The plaintiff said that she had passed along the corridor, more or less outside the laundry, which is next to room 10, on several occasions before the incident. 19 The plaintiff said that the incident occurred about 7.30 am on 15 April 1995. She had showered a patient and there were several others in the bathroom already referred to. One of the patients she was involved with had a colostomy bag; this the plaintiff removed and replaced, and then she was on her way (carrying the replaced colostomy bag,
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wrapped up) along the corridor which commences opposite the kitchen area and then past the dining room on the plan. She was moving in a path towards room 12. She said that she was walking in a position more or less outside the staff room and near the wall when she slipped and fell heavily, sliding, in effect, through the air. Her right leg went back under her left buttock and she landed on her buttocks. She screamed in agony and was immediately attended to by a number of people, including a sister and two other nurses. Ultimately, with the aid of a sling, these people were able to lift her into a wheelchair and she later went home. The sister involved was Sister Sandra Cole. The plaintiff said that she was in very severe pain from the moment of the incident until she went to hospital that night, where she was given Pethadene. The plaintiff said she had seen no signs while she was walking, but while she was on the floor on her backside, she looked around and saw a "wet" sign inside the doorway in room 12 at the end of the corridor, which was some considerable distance away. Upon reviewing the evidence, I find it very difficult to accept that in the condition she was, the plaintiff was able to note the presence of a sign a considerable distance away and relevant to the particular problem that existed at the time. 20 The plaintiff said she saw nothing on the floor as she was walking but that as a result of the fall, the back of her uniform was wet where she had sat on the floor, and, further, said it was still damp at the hospital some 2-1/2 hours after the accident. This also I found very difficult to accept for further reasons given shortly. 21 Under cross-examination, the plaintiff suggested that the distance from the scene of the incident to the warning sign was in the region of 20 to 30 metres - it was generally agreed that the distance was in fact approximately 11-1/2 metres. She did not see the sign before she fell and was not looking at the ground as she walked. While she was on the ground after the incident, she said that nothing took her attention away from the sign which was "stuck in the doorway of the room". The plaintiff agreed that after the incident, she had submitted a worker's compensation claim form alleging that she had "slipped on mopped floor in corridor". She said that, in fact, it was her belief that the floor had been mopped and that there was something on the floor even though she did not see any liquid substance on the floor. She was adamant that she had been put in a sling by the people assisting her to go into a wheelchair. At the time, she said that Sister Cole told her that the floor had been mopped and signs were up, although it is difficult to ascertain when, in fact, she had been told this.
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22 The plaintiff was unable to remember what foot had slipped.
23 As to the substance on the floor, the plaintiff said that it had no smell at all ie. of disinfectant or detergent (usually used to clean various substances on the floor) or of urine or something similar. She saw no puddles or anything on the floor. She described how in fact she fell with her right leg hitting the wall on the right hand side and buckling under her with the left foot straight out in front of her and her buttocks on top of the injured leg. She confirmed that only part of her dress was wet and that the left hand side was not wet. She said that in fact she had showered patients without protective clothing in the shower room before that and did not get her dress wet then. I find it difficult to accept that the dress would not have become wet in some way during the showering operation, but, in any event, it was the plaintiff's evidence that the dress was wet on the back of the dress rather than anywhere on the front. 24 The plaintiff was a very firm and adamant witness who was sure that she had slipped on a substance on the floor and that in the immediate vicinity of where she slipped, there was no warning sign. 25 Ms Sandra Shahall was an employee of the defendant whilst the plaintiff was working there. She had a variety of duties and occasionally worked doing the laundry which, in fact, she was doing at the time of the accident. She heard a thump and a cry and saw the plaintiff hard up against the wall on the right hand side of the corridor already referred to. She could not recall the plaintiff's leg position and could not remember what the state of the floor was. She said there was a dispute at the time as to whether there was a sign up. She confirmed that the plaintiff was in considerable pain at the time of the accident and later on. In cross-examination, she confirmed her recollection that there was a warning sign some distance from the area where the plaintiff fell. She could not recall any obvious signs of liquid or substance on the floor. She would have remembered, she said, if there was faeces on the floor, however, urine was not easily noticeable when it was on the floor. She did not notice anything unusual about the plaintiff's uniform or notice any spillage on it. 26 The only witness for the defendant was Ms Sandra Cole, a registered nurse (sister) who was working in that capacity when the accident occurred. She was working in a room near the incident scene when she heard a scream and went out and saw the plaintiff with her leg buckled under her. The plaintiff's right leg was in an angle, probably under her buttock. She straightened both the plaintiff's legs. She was not
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able to remember if the plaintiff was carrying anything and was not sure whether there was any substance on the floor. She could not remember whether there were any warning signs. 27 Contrary to the plaintiff's evidence, Ms Cole said that a sling was not used to lift the plaintiff, and that she was lifted by other staff placing their hands under her armpits. 28 As I have already stated, it is necessary to make certain factual findings as to the incident itself. It seems clear that the plaintiff fell at a position around and opposite the dining area and near the staff room in the corridor. It seems that she fell in such a way as to hit the wall on the right hand side. It is clear from the evidence that there was a high level of alertness generally as to the possibility of substances being on the corridor floors. In particular, staff were alert to the possibility of incontinent patients causing substances to be on the floor. It is also the case that as soon as any such substances were noted, there were instructions that these were to be immediately cleaned up by a variety of staff. It is also the case that at the time of the incident, namely 7.30 am, there were various people using the corridor in the area in which the incident occurred. That corridor gave access not only to living areas, but also the laundry, dining room, kitchen, bathroom and WC's. Also, the staff room was virtually adjacent to where the incident occurred. As a general rule, had there been a substance visible on the floor, I am satisfied that it would have been cleaned up very expeditiously by staff as according to the instructions. It also appears to be the case that there had been some work done on the floor outside the front of room 12 but this was some considerable distance from the place of the incident. In accordance with the proper procedure, a sign had been put up there. 29 The only evidence that there was some substance on the floor came from the plaintiff - she did not in fact see any liquid substance nor smell any substance and it is clear that she has concluded that she slipped on a substance which caused her to fall. It is open to find that the floor did not have a substance with any smell attached to it such as urine, faeces or detergent. 30 The duties owed by the defendant to the plaintiff under the plaintiff's contract of employment as set out in par 3(a) to par 3(c) were not really in issue. 31 The first question to be determined, therefore, is whether the plaintiff has established that there was a breach of any of these terms of her
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employment. The fundamental obligation of an employer in situations such as this is to ensure that appropriate precautions by way of inspection and cleaning have been taken. 32 On the evidence, it is clear that there was a good appreciation of the likelihood of substances finding their way on to corridors and other areas in the nursing home - the unfortunate incontinence difficulties of the patients were well known and staff were trained to be, and were, alert to the likelihood of "accidents" causing slippery surfaces. It is reasonable and open to infer that the same attention was given to other causes of spillages in such premises. 33 It is also a reasonable conclusion to draw that there was a system in place to deal expeditiously with any such spillages - I accept that not only did such clean-ups occur regularly and quickly, but also the carrying out of these duties were under the control of senior staff (including the matron) who were alert to the risk of spillages and the need to make them safe as soon as they were created. It was also the case that the use of warning signs was mandatory, and that this requirement was carried out by the staff. 34 There was, in effect, a continuing system of inspection and cleaning carried out not only by supervisory and cleaning staff, but also by the nursing assistants themselves. 35 On the evidence, I am satisfied that such system was in operation on the day of and at the time of, the incident. There were precautions taken by the employer by way of inspection and cleaning and these requirements were constantly monitored and carried out. 36 It was argued on behalf of the plaintiff that the circumstances of this case fall within the ambit of the principles enunciated by Zelling J in Drakos v Woolworths (SA) Ltd (1991) 56 SASR 431. At page 453, his Honour was dealing with the question of causation and observed: "A jury properly instructed would have had no problem with causation in this case. Here you have a busy supermarket. It has a high incidence of slippery substances on the floor. It is only cleaned professionally at the beginning of each day. Detection of spillages occurring during the day is left to the observation and action of the supervisor and the staff. As the judge observed, what was everybody's responsibility was nobody's responsibility. It is an obvious inference from that state of affairs that a spillage might remain undetected and not
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removed for a long enough time to be causative of a plaintiff's injury such as occurred in this case." 37 In my view, the circumstances in that case can be distinguished from the present matter. The court in Drakos v Woolworths (SA) Ltd (supra) was dealing with an evidence in a large and busy supermarket with a large number of people using the floors, with the resulting possible inference that spillages might go undetected. In the present case, the areas were relatively small, as were the number of people using them. 38 Further, in the present case, the likelihood of spillages was recognised, and rather than the cleaning up being left to the cleaners as and when they are noticed, those who saw or found the spillage were given a personal responsibility to immediately clean up and put the necessary warning signs in place. Contrary to the characterisations of the situation in Drakos v Woolworths (SA) Ltd (supra) as "everybody's responsibility (being) nobody's responsibility", I would describe the system in this case as "everybody's responsibility being everybody's job". It is difficult, in my view, to envisage a more effective method of dealing with the problem. If, on the other hand, the cleaners were to have the job of cleaning up these spillages, a number of requirements would have been necessary ie. the cleaners would need to be on site 24 hours a day, the requirement to clean up would have to be communicated to them (with its usual attendant possibilities of misinterpretation and misinformation) and the cleaners would have been required to cease what they were doing and deal with the problem, thus leaving their own area of work in a possibly dangerous condition. 39 I am of the view that the system provided by the employer was practical and the best possible in the particular circumstances of the nursing home. 40 This being so, I am unable to find that there was a breach of the fundamental duty of care owed to the plaintiff. 41 Even if such breach had occurred, the real question in this case (as in other cases of this nature) is whether any such breach was causative of the plaintiff's injuries. 42 In Bicknell v Australian Telecommunications Commission (supra), consideration was given to a number of cases in which plaintiffs had been injured by slipping on substances on floors. In many of such case, the cause of the fall was not in issue. In the present case, however, there was a very live issue as to whether there was a substance on the floor at all.
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43 After a careful consideration of the evidence as to this aspect, I am of the view that it is not possible to find, on the balance of probabilities, that the plaintiff slipped on a substance, whatever the plaintiff may have concluded that to have been. The substance was never properly identified even though witnesses were on the scene within seconds of the incident. The only evidence as to this aspect is that of the plaintiff - I have already mentioned some matters which affect, at least, her reliability in this regard.
44 It was argued on behalf of the plaintiff that the only proper inference and reasonable inference to be drawn on the facts was that the plaintiff slipped as she described and that there was no room for any other reasonable conclusion as to how she fell. 45 Having reviewed the evidence, it is my view that such an inference is not the only inference open and that just because the plaintiff fell at a particular point, and in a particular way, does not provide a sufficient basis to conclude that a slip occurred, even giving more credence and effect to the plaintiff's evidence than I am prepared to do. 46 In the absence of any evidence that a substance was seen on the floor in the area of the fall, it is equally possible, in my view, to conclude that the plaintiff tripped or lost balance in some way unrelated to any defect in the premises. In the light of the plaintiff's evidence generally, and that she had an area of her dress which was wet (limited as it was, and not, in particular, including any underclothing) and that the dress was still damp some 2-1/2 hours to three hours later and that she was able to see a sign some considerable distance away even though she was in extreme pain and discomfort, I believe that the plaintiff has convinced herself that she slipped on a substance and has added some pieces of evidence to confirm and establish this belief. 47 It is obvious from this observation that I have some concerns about the plaintiff's reliability, although I do not consider there is a basis upon which one could make firm adverse findings about the plaintiff's credibility. 48 Counsel commented on other areas in which the plaintiff's reliability at least was in question. Some of these should be mentioned. 49 The plaintiff was adamant that she had been lifted in a sling. Contrary evidence was given by Sister Cole - as she was not traumatised by the incident to the same extent as the plaintiff, I consider her evidence to be more reliable on this point.
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50 The answer by the plaintiff as to her darts competition experience also caused me some concern. Similarly, the plaintiff's reference about disclosing the receipt of a support carer's pension and extent and effect of the condition known as Crohn's disease suffered by her affected my view of her reliability, particularly as to the question of her loss of income and earning capacity. I should confirm that despite the plaintiff's evidence that she was in constant pain and could not "stand and walk for long to do any work", she receives a carer's pension on the basis that she is a full-time carer of her mother-in-law - this must involve a reasonable amount of physical activity.
51 It should be remembered that it is quite possible for people to fall in the course of their work without slipping on any substance and in circumstances where there is no fault on the part of the employer - this, I consider, is one such case; I am unable to find that the accident was caused by the plaintiff slipping on any substance on the floor. 52 This being so, the fundamental allegation in par (4) of the Statement of Claim, namely that the plaintiff "slipped on a liquid substance on the floor" has not been established. It follows that the particulars of negligence alleged in par 6(a) to par 6(d) and par 6(f) have not been made out. Further, the allegation in par 6(e), in the light of my findings above, has not been established. As to the allegation in par 6(g), there was little or no basis in the evidence of this pleading. 53 The same conclusions could be arrived at in relation to the allegations of breach of statutory duty and contract. 54 In the light of the evidence and my findings, I am able to find that it was more likely that the floor of the corridor was not wet and/or slippery (as alleged in par 5(a) of the defence); it is clear that the plaintiff was wearing boots which could be described as "slip-resistant rubber soled shower boots/shoes" (as in par 5(c) of the defence). As to the allegation in par 5(b) of the defence, the evidence allows only an inference that the area of the corridor some considerable distance from the plaintiff's fall, and near room 12, had been cleaned and mopped before the incident, and that a warning sign had been placed there. 55 It is not necessary to make any findings as to the allegations of contributory negligence, although, assuming the plaintiff did not slip on any substance, the fact that she fell very near to the walls and was probably in a hurry to dispose of the colostomy bag may suggest some lack of alertness on her part.
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56 The plaintiff's claim for damages against the defendant therefore fails.
57 The question now arises as to whether it would be appropriate to make a provisional assessment as to damages, including a determination as to the issue arising under s 93F of the Act. I have already made adverse findings as to the reliability of the plaintiff as to the circumstances of her fall and in so doing, have referred to some of her evidence as to her employment history - some concerns were raised as to such evidence. 58 In the light of these findings, it may be thought inappropriate for me to make a "provisional" award of damages and/or to give any opinion as to the proper application of s 93F of the Act to this matter. Even though I have some reservations as to the practicality and propriety of doing so in this matter, I consider that as counsel have argued the matter, some limited indication of my views in this aspect is appropriate. 59 I will proceed on the assumption that the defendant was found wholly liable for the plaintiff's injuries without any contributory negligence or breach of duty on the part of the plaintiff. 60 It is clear that the plaintiff sustained a serious injury to her right leg in the incident. She underwent a series of investigations and operations culminating in a right knee palatectomy and tendon repair on 30 October 1998. It is reasonable to conclude that the plaintiff has suffered many, if not the majority of symptoms and sequelae pleaded in par 11 and par 12 of the statement of claim, although there was an issue as to the plaintiff's ability to carry out domestic and/or household duties. In this respect, I confirm that in February, the plaintiff was granted a "carer's pension" on the recommendation of her general practitioner. An issue arose as to the basis of his recommendation. Notwithstanding the suggestion by counsel for the plaintiff that the plaintiff was given the pension by her general practitioner because she did not qualify for any other assistance, I consider that there is a proper basis on the evidence to conclude that the plaintiff was granted (and receives) the carer's pension because she provides daily assistance in the house to her mother-in-law, such assistance involving a degree of physical activity (see T83). 61 Bearing this in mind, and the evidence generally, an appropriate award of damages for loss of amenities would be in the region of $35,000. 62 I accept that the plaintiff was unable to work in her pre-accident occupation during the period set out in par 12(b)(i) to par 12(b)(vi) of the statement of claim and has been so incapacitated since 14 April 1998.
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Similarly, the plaintiff has been fit for "light duties" only for the periods alleged in par 12(c). It is appropriate to find that the plaintiff is unfit to return to her pre-accident occupation as a nursing assistant, although I would not be satisfied, on the evidence that she could not involve herself in some occupational assistant's role of the type discussed in the evidence. 63 Given the ability of the plaintiff being able to earn some limited amount in such a capacity in the future, and adopting the method of calculation set out in the plaintiff's Schedule of Loss, it is clear that the plaintiff's total award of damages would be in the region of $240,000 inclusive of general damages - on the basis of an assessment in the usual manner at common law. 64 The question which arises, is the basis upon which s 93F of the Act should be applied in a case such as this. 65 In his written submissions, counsel for the defendant set out the historical background to the present s 93F of the Act. It is clear that prior to the Workers' Compensation and Rehabilitation Amendment Act No 48 of 1993, there was no cap on the overall award of damages available to an injured worker who succeeded in a claim against an employer in breach of contract, breach of statutory duty and/or negligence. Also, there was no entry threshold before a worker was entitled to commence an action for damages or recover such damages. 66 The 1993 amending Act sought to introduce such limitations, however, ultimately, on 5 October 1999, two Acts were passed, namely the Workers' Compensation and Rehabilitation Amendment Act (No 2) No 3 of 1999 and the Workers' Compensation and Rehabilitation Amendment Act No 34 of 1999. It was the latter Act (s 32) which introduced s 93F into the Act. It should be remembered that s 93E of the 1993 amendment Act sought to place a limit on the damages available for non-pecuniary loss which covered, it is accepted, general damages only. 67 Section 93E of the Act provided, inter alia:
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68 At the time, amount A was determined to be $200,000 with a formula available for a variation thereof from time to time.
69 The wording of the operative parts of s 93F are different ie.: "1. Unless an agreement or determination that the degree of disability of the worker is not less than 30% is recorded for the purposes of section 93E - 70 It can be seen that the new section deals not only with "non-pecuniary" loss, but also damages under other heads such as past and future economic loss, gratuitous services. It is not clear that the section covers aggravated or exemplary damages. 71 The present amount A is fixed (from 1 July 2001) at $264,903. 72 It is clear that if there has been a determination that a worker's disability is greater than 30 per cent, there is no entry threshold, no cap on damages or any scaling of such damages - the damages are to be assessed according to the common law principles. 73 It is also the case that, here, the plaintiff has a disability of not less than 16 per cent - thus, pursuant to s 93E(4) of the Act, the plaintiff has a "significant disability". The plaintiff has, thus, a disability between 16 per cent and 30 per cent and any assessment must be made pursuant to s 93F of the Act. 74 So far as the plaintiff was concerned, it was confirmed that pursuant to s 93E(2)(b), damages can only be awarded to the plaintiff if she elected to retain the right to seek damages - she made such election in December 1999, the registration of such election taking place on approximately 13 October 1999.
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75 The question which arises is as to the method to be adopted in the awarding of damages, bearing in mind the intended "cap" contained in s 93F.
76 It is clear that pursuant to s 93F(1)(b), amount A can only be awarded in "a most extreme case of a disability of less than 30% in degree". 77 It was the plaintiff's submission that in order to give effect to the meaning of "proportion" in s 93(1)(a), it is necessary to look for the relationship between the amount of damages to be awarded and the maximum amount which may be awarded ie. the court should compare the severity of the injury being assessed to that suffered in "a most extreme case" and then assign the plaintiff's case as being found somewhere along the resulting scale. Several cases in which this process took place were under other legislation were referred to ie. Southgate v Waterford (1990) 21 NSWLR 427, Dell v Dalton (1991) 23 NSWLR 528, Wylde v Aristondo, unreported; FCt SCt of WA; Library No 970359; 23 July 1997 and Hendrie v Rusli [2000] WASCA 249. 78 It was confirmed by counsel for the plaintiff that these cases involved legislation which referred only to the assessment of damages for non-economic loss, whereas s 93F clearly contemplates the awarding of damages to involve both economic and non-economic loss. Notwithstanding this difference, it was the submission of the plaintiff that in order to give meaning to the word "proportion", a comparison exercise must be carried out and because the section speaks of "severity of the disability" rather than the "severity of the loss", which was the wording, in effect, of the previous s 93E of the 1993 amendment Act, the impact of both economic and non-economic loss on the plaintiff must be considered. 79 If such an interpretation was accepted, it was suggested that a range of cases could be involved, depending on the extent of economic and non-economic loss and a wide range of cases might constitute "a most extreme case" - in other words, the section could be used to deal with the various combinations of circumstances and losses arising in various cases. 80 In order to place the plaintiff's case on the scale, it was submitted that in accordance with the above method, the extent of the economic loss should be determined, also, a consideration of the extent of the plaintiff's disability should be examined including the assessments made by the specialists.
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81 It was submitted that the evidence as to the plaintiff's disability, her economic loss (on the basis of the plaintiff being totally incapacitated for any work including, obviously, her pre-accident occupation) and the assessment of Mr Withero (surgeon - 25 per cent of the right lower leg) and Mr Bell (orthopaedic surgeon - 40 per cent of the right lower leg), the nature and extent of loss suffered by the plaintiff in relation to other economic and non-economic loss equated to a most extreme case of disability of less than 30 per cent and, therefore, the plaintiff was entitled to the maximum pursuant to s 93F(1)(b).
82 In summary, the approach postulated on behalf of the plaintiff involved the consideration of the evidence as to the plaintiff's physical and other disabilities, its effect on her enjoyment of life and her economic loss and the placing of this on a scale of the most extreme case of disability. It was said that these matters placed the plaintiff at the top of the scale ie. the most extreme case and, therefore, is entitled to the maximum ie. amount A. 83 The defendant, on the other hand, pressed for, in effect, a mathematical approach. The defendant submitted that the first step was to determine (or agree) a percentage degree of disability to be ascribed the plaintiff, this being divided by 29 or 29.9. In other words, an objective rather than subjective standard was suggested in the assessment of damages pursuant to s 93F. 84 The defendant submitted that the authorities and approach upon which the plaintiff relied were dealt with legislation which was similar to s 93F and, therefore, had no application. 85 It was submitted by the defendant that s 93F was capable of ambiguous interpretations and several examples were given to demonstrate this. 86 In the end, it was suggested on behalf of the defendant, that a simple relationship of percentage, degree of disability (determined or agreed in relation to the plaintiff), divided by 29.9 or 29, be used as a basis for the calculation of the proportion of the maximum amount. In this case, it was submitted that the amount of the assessment of the plaintiff of 25 per cent by Mr Withero should in fact be reviewed in accordance with Sch 2 of the Act (ie. the application of a figure of 70 per cent) leaving to 17.5 per cent, rather than 25 per cent, and the 40 per cent assessment of Mr Bell would also be "translated" to a figure of 25 per cent. The plaintiff's damages
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would therefore be a proportion of 17.5 or 25 per cent of 30, multiplied by the maximum to give a range. 87 As to these two methods and the interpretation involved therein, the latter would obviously be easier, however, in my view, it does not allow the court any discretion in the calculation of damages to be awarded. Further, the wording of s 93F, in my view, suggests some consideration of the overall economic and non-economic consequences to the plaintiff as a result of the accident. The wording "determined according to the severity of the disability" rather than "determined according to the degree of disability", suggest a discretionary, rather then a mathematical calculation, is necessary. The expression "degree of disability" is defined in s 93E(1) as meaning "the degree of disability of the worker assessed in accordance with s 93D(2)". Had the legislature intended that some reference be made to the definition and its effect, this would no doubt have been included in s 93F. The legislature, however, elected to use the expression "severity of the disability" and this difference in wording is important, in my view. 88 Thus, I consider some assessment of the proportion is to be made as suggested in the authorities referred to by the plaintiff. In particular, the discretion referred to by Murray J in Hendrie v Rusli (supra) at 18, although under different legislation, should be applied in matters such as these. 89 Therefore, although s 93F is devoid of any clear indication as to how the proportion is to be determined, I favour the view suggested by the plaintiff. 90 On this basis, on the basis referred to by me, the plaintiff would be entitled to the maximum allowed under the Act.
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