Harrison v Ralph M Lee (WA) Pty Ltd - [2005] WADC 42

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: HARRISON -v- RALPH M LEE (WA) PTY LTD [2005] WADC 42

CORAM: EATON DCJ

HEARD: 15 OCTOBER 2004

DELIVERED : 11 MARCH 2005

FILE NO/S: CIVO 88 of 2004

BETWEEN: JASON WILLIAM HARRISON
Plaintiff (Respondent)
AND
RALPH M LEE (WA) PTY LTD
Defendant (Appellant)

ON APPEAL FROM:
For File No              :  CIVO 88 of 2004
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :ACTING PRINCIPAL REGISTRAR KINGSLEY
File No  :CIVO 88 of 2004

Catchwords:

Workers' compensation - Appeal from the granting of leave to bring proceeding - Assessment of future pecuniary loss - Determination of prescribed amount

Legislation:

Interpretation Act 1984

Workers' Compensation and Rehabilitation Act 1981

Workers' Compensation and Rehabilitation Amendment Act 1999

Result:

Appeal dismissed.

Representation:

Counsel:

Plaintiff (Respondent) : Mr B L Nugawela
Defendant (Appellant) : Mr P P McCann

Solicitors:

Plaintiff (Respondent) : Bradley & Bayly
Defendant (Appellant) : Crisp Civitella Smith

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

Dossett v TKJ Nominees Pty Ltd [2003] HCA 69
Downsborough v Pinnacle Services Pty Ltd [2004] WADC 197
Elton Ltd v Dowsett [2001] WASCA 101
Hanna‑Pauley v David Jones Ltd [2004] WADC 69
Jabar‑Khail v Troon Holdings Pty Ltd [2004] WADC 108
Lend Lease Employers Systems Pty Ltd v Lydon, unreported; FCt SCt of WA; Library No 980088. 27 February 1998
Morgan v EK & MM Costello T/as Wanneroo Smash Repairs Pty Ltd [2004] WASCA 260
Richardson v Whymark Nominees Pty Ltd [2004] WASCA 208
Sampson v Industrial Progress Corporation Pty Ltd, unreported; FCt SCt of WA; Library No 70058; 21 February 1997
Waddington v Silver Chain Association (1998) 20 WAR 269
Wade v Allsopp (1976) 10 ALR 353
Yongen v CSR Ltd & Anor (1992) Aust Torts Reports 81‑192

Case(s) also cited:

Wattle Gully Mines v Clementi (1956) 94 CLR 353
Geraldton Building Co Pty Ltd v May (1977) 136 CLR 379
Andrews v Electricity Corporation, unreported; DCt of WA; Library No 4454; 22 May 1995

EATON DCJ: On 29 April 2004 the plaintiff applied by originating summons for leave pursuant to s 93D of the Workers' Compensation and Rehabilitation Act 1981 to commence proceedings against the defendant for damages in relation to personal injuries suffered by the plaintiff during the course of his employment with the defendant. That application was supported by an affidavit sworn by the plaintiff on 28 April 2004. It was heard by Acting Principal Registrar Kingsley on 12 May 2004. It appears that he, on 17 May 2004, granted the plaintiff leave to commence proceedings against the defendant for damages with respect to a disability sustained by the plaintiff between 23 May 1998 and 27 May 1998.
On 20 May 2004 the defendant gave notice of appeal against Acting Principal Registrar Kingsley's decision. The appeal was heard by me on 15 October 2004. I reserved my decision.
The hearing of an appeal from a registrar of the Court is a hearing de novo. No new…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] WADC 42
Decision Date: 11 MARCH 2005

CaseChat Overview and Summary

The appeal in Harrison v Ralph M Lee (WA) Pty Ltd concerns the assessment of future pecuniary loss in a workers' compensation claim. The matter was heard in the Supreme Court of Western Australia. The appellant, Harrison, sought to challenge the assessment of future pecuniary loss by the respondent, Ralph M Lee (WA) Pty Ltd. The primary issue before the Court was whether the respondent, due to his injury, was compelled to cease work as an electrician and retrain as a baker's assistant, and if so, whether this necessitated a re-assessment of his future pecuniary loss.

In addressing this issue, the Court considered the relevant authorities on how to approach the assessment of future pecuniary loss in the context of workers' compensation claims. The Court noted the principle established in Sampson v Industrial Progress Corporation Pty Ltd, which suggests that in cases where there is material conflict in the evidence, the view reasonably open on the evidence which most favours the applicant should be adopted. This principle was further elaborated in Waddington v Silver Chain Association and Lend Lease Employers Systems Pty Ltd v Lydon, where the Court highlighted the importance of considering the evidence from the perspective that most favours the applicant when there is a material conflict.

The Court found that the respondent had indeed changed his occupation from electrician to baker's assistant due to his injury. This change in occupation was based on the respondent's belief that he could no longer undertake the work of an electrician. The Court considered the conflicting evidence on the respondent's ability to continue as an electrician and concluded that, given the material conflict, it was appropriate to adopt the view reasonably open on the evidence which most favoured the respondent. Consequently, the Court determined that the respondent was compelled by his injury to cease work as an electrician and retrain in the less remunerative occupation of baker's assistant, warranting a re-assessment of his future pecuniary loss.

The Court's decision led to the allowance of the appeal, with the case being remitted back to the Registrar for a re-assessment of the respondent's future pecuniary loss in light of the changed occupation.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In Sampson v Industrial Progress Corporation Pty Ltd (unreported; FCt SCt of WA; Library No 70058; 21 February 1997) Parker J said at 5:"In attempting to assess the future pecuniary loss of a person seeking leave to commence proceedings, it is necessary for the Court to act on affidavit evidence and it is likely that there will be some divergence or conflict in that evidence. While in some situations the Court will be able to come to a clear view of the relevant facts despite divergences in the affidavit evidence, in most cases it will be inappropriate to resolve material conflicts. Given the nature of the application, usually it will be appropriate, where there is material conflict or divergence, to act on the view reasonably open on the evidence which most favours the applicant. Both parties to this appeal accepted this view. It is the approach which commended itself to Judge L A Jackson in Sgro v New Cement Co Pty Ltd (1995) 15 SR (WA) 44." In Waddington v Silver Chain Association (1998) 20 WAR 269 at 285 the Court said:"The approach adopted by Parker J in Sampson needs to be considered in those instances where, in the words of Parker J, the case is not one in which the Court will be able to come to a clear view of the relevant facts despite divergences in affidavit evidence."If the Court is able to arrive at a clear view of the relevant facts despite conflicting evidence, it is suggested that the Court would not need to consider application of the approach by Parker J to the case at hand. If, however, 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". As emphasised by Kennedy J in Lend Lease Employers Systems Pty Ltd v Lydon (unreported; FCt SCt of WA; Library No 980088. 27 February 1998) acting on a view "reasonably open on the evidence which most favours the applicant" is an approach quite distinct from placing the best interpretation one can upon the evidence of the applicant." Counsel for the appellant submitted to me that the relevant authority as to the way in which such an assessment should be approached was Lend Lease Employers Systems Pty Ltd v Lydon. Counsel for the respondent urged upon me that the leading authority in this State is Waddington v Silver Chain (supra), a decision subsequent to Lend Lease Employers Systems Pty Ltd v Lydon. What concerns me in this matter is that the respondent has changed his occupation from that of electrician to that of baker's assistant by way of re‑training based on the proposition that he can no longer undertake the work of an electrician by reason of his injury. He deposes to having ceased work as an electrician on 29 March 2004. The bald statement of belief in par 19 as to the information attributed to Mr Witherow does seem to run contrary to Mr Witherow's report of 23 April 2003 in terms of the respondent's ability to continue in the occupation of electrician. Not being a judge at trial having the benefit of evidence being tested both by cross‑examination and contrary opinion I am, I think, having regard to the authorities obliged to take the view, for the purposes of this appeal, that the respondent is compelled by his injury to cease work as an electrician and re‑train in the less remunerative occupation of baker's assistant.