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 evidence was adduced by either party.
The Workers' Compensation and Rehabilitation Act 1981 relevantly provided in s 93C that if Division 2 of Part IV of the Act applied a court was not to award damages to a person contrary to that Division. My understanding is that the Division does apply. That being the case, s 93D provided that damages could only be awarded if the disability results in the death of the worker or it is a serious disability. Section 93D(4) provided that an action for damages could not be commenced without the leave of this Court. Section 93D(5) provided that leave is to be given if the Court determines that the worker is likely to have future pecuniary loss resulting from the disability of an amount that is at least equal to the prescribed amount.
The appellant contends that Acting Principal Registrar Kingsley erred in two respects as follows:
(a)by applying the sum of $119,048 as the relevant prescribed amount for the purposes of s 93D(5)(c) of the Act when the correct amount was $135,531;
(b)by finding on the evidence that the plaintiff's future pecuniary loss was likely to be at least equal to the prescribed amount.
It makes sense to first make a determination as to the respondent's future pecuniary loss, if any, resulting from the disability. Counsel for the respondent suggested that if I adopt an appropriate approach to assessing future pecuniary loss I will arrive at an amount which is in excess of both the prescribed amount as applied by Acting Principal Registrar Kingsley and that which the appellant contends was the appropriate amount. Counsel for the appellant submits that an assessment of the respondent's future pecuniary loss would fall below both figures.
The only evidence before Acting Principal Registrar Kingsley was, as mentioned, the affidavit of the respondent sworn 28 April 2004. Having regard to that affidavit I conclude that the respondent is presently 26 years old. Having completed year 12 he took up employment as an electrical apprentice with the appellant. In the course of his work in May 1998 he was required to travel to Bunbury with a team of five other employees. He deposes to being required to dig a trench using a shovel. The trench was to be approximately 150 metres long and would accommodate electrical cabling. He deposes to having begun that task at 7.00 am on Monday 23 May 1998, being assisted by three workers. The work was difficult. He deposed that by 27 May 1998 he had begun to develop significant shoulder and right hip pain. He says that he complained to his supervisors, also employees of the appellant, about the nature of the work and the difficulties encountered. He says that following 27 May 1998 he returned to Perth and noticed, shortly after, right shoulder pain and right hip pain becoming "much worse". He said that he attended his general practitioner and was later referred to an orthopaedic surgeon. He later returned to electrical duties and completed his apprenticeship with the appellant while being restricted to lighter duties.
At the time that the affidavit was sworn the respondent said that he was employed as an assistant at a bakery working approximately 40 hours per week and earning income at the rate of $500 net per week. He had, he said, retrained himself.
When last working as an electrician he was employed by a firm called Global Cabling Systems. He left that employment on Monday 29 March 2004.
The respondent deposed to his belief that his disabilities in his right shoulder and right hip were caused by the negligence, breach of contract and/or breach of statutory duty of the appellant in that the appellant failed to devise, implement, maintain and enforce a safe system of work in relation to the task which he was performing in the week prior to 27 May 1998. He had intended, he said, to continuing working as an electrician until aged 65 years. In that capacity, he said, he could have earned an income at the rate of approximately $40,000 gross per year.
The respondent annexed various medical certificates and reports to his affidavit. It is clear that he was referred by his general practitioner, Dr Wayne Martin to Mr Peter Hales, an orthopaedic surgeon who saw him initially on 29 June 1998. With some uncertainty as to what the respondent's problem was Mr Hales referred him for a further opinion to Mr A P Skirving, a consultant orthopaedic surgeon. The latter suggested a diagnostic arthroscopy. It is clear that the respondent was the subject of an arthroscopy on his right shoulder on 16 June 1999. He underwent capsular shrinkage to combat shoulder instability.
It appears that there was a change in general practitioner from Dr Martin to Dr Tan. The latter referred the respondent to Mr Greg Witherow, an orthopaedic surgeon. The respondent underwent magnetic resonance imaging and an ultrasound exploration of his right hip. The symptom being explored was a painful clicking right hip. The respondent underwent further surgery related to the hip problem. Mr Witherow reported on 6 November 2000:
"I reviewed Jason in relation to his right hip. I think as a result of his arthroscopy we have improved his symptoms although he still gets quite a severe sharp cramping pain in his hip a couple of times a day which stops him."
By letter of 8 January 2001 he reported:
"I reviewed Jason and at this stage I think he is now fit to return to his normal duties. He is still getting some grinding and clicking in his hip but at this point it is not sufficient to stop him returning to work. I therefore have given him a form to that extent but I have said that I think he would benefit from trying some orthotics. I do not see any problem with Jason settling his outstanding medico‑legal claim at this stage and I know he is keen to do that."
On 26 April 2001 Mr Witherow reported:
"I believe that Jason is recovered sufficiently to be able to return to work. I would assess that although he has some underlying symptoms it should not preclude his ability to work. Therefore, I think the grinding and discomfort he experiences is mild and I would assess it as only five per cent of limb as a whole. I do believe that at this point in time Jason's claim is able to be finalised."
Professor David Wood, an orthopaedic surgeon and head of the Perth Orthopaedic Institute reported on 14 August 2001:
"I note his treatment has included analgesics, non‑steroidal anti‑inflammatory medication, local anaesthetic and steroid injection and two arthroscopic debridements of the hip and all ligamentum teres. I note that he had an operation by Mr Peter Annear to release the anterior capsule of his hip. None of this surgery has been of benefit to him. On examination he has pain on internal rotation in flexion of his right hip but no evidence of a fixed flexion deformity, slight restriction of flexion and abduction."
In a letter of 29 August 2001 he concluded that the respondent had a residual disability of about 5‑10 per cent.
Mr Witherow reported on 28 June 2003 that the respondent had been reviewed in a panel discussion on 27 February 2003. He said:
"As mentioned previously Jason has the ability to produce a quite unnerving noise that seems to relate to his hip motion. The consensus of the panel was that what we were hearing wasn't actually coming from within his hip joint but was suspected to be coming from the soft tissues in front of his hip joint. It was therefore felt that Dr Peter Annear, an orthopaedic surgeon in our practice who deals with these types of injuries should review him and decide whether or not some treatment to the area of his psoas tendon is appropriate."
Mr Annear suggested a diagnosis of psoas pain syndrome resulting in a five per cent permanent disability.
In a report of 23 October 2003 Mr Witherow referred to the possibility of the respondent developing degenerative arthritis and the possibility of a need for a hip replacement in 15‑20 years time when the respondent would be between 40 and 50 years old. He said that if he were to undergo a hip replacement then he might well have to modify his activities as an electrician. That would depend upon the type of general work he was doing. He would, he said, be precluded from doing heavy electrical work and would require a period away from work of approximately two months to allow for recovery from that surgery. He didn't foresee the need for any further surgery in the short to medium term.
The final medical report followed a bone scan which, said Dr Joe Cardaci in a report of 4 March 2004, demonstrated only relatively mild arthropathy in the medial aspect of the right hip joint without evidence of associated synovitis. He commented that the remainder of the right hip region and proximal femur appeared normal. He said that no abnormality had been demonstrated in the lumbar spine or sacro iliac joints to suggest a referred source of the symptoms.
Counsel for the respondent suggested to me that because of his progressive disease in his hip bones the respondent has attempted to mitigate his loss by changing his occupation from that of electrician to that of baker's assistant. He said that he is engaged in re‑training himself. In that regard in par 19 of his affidavit the respondent said:
"When I met with Mr Witherow on 29 March 2004 Mr Witherow informed me and I verily believe that I should be re‑trained into another profession."
The most recent report attributed to Mr Witherow and annexed to the respondent's affidavit was that dated 23 October 2003. In that report Mr Witherow commented that if the respondent were to undergo a hip replacement then he might well have to modify his activities as an electrician. He explained that whether he would need to do so would depend upon the type of work required of him noting that he was aware of a number of electricians and others in manual positions who had undergone arthroplasties. He commented that a hip replacement would preclude the respondent from doing heavy electrical work, from jumping and from carrying particularly heavy loads.
In par 16 of his affidavit the respondent said that he did return to electrical duties following the events of May 1998 and completed his apprenticeship. He did tailor his work duties to light employment and was not, he said, able to perform all of the work duties required of an electrician. At par 17 the respondent said:
"I am currently employed as an assistant at a bakery working approximately 40 hours per week and earning income at the rate of $500 net per week. I have only recently begun this work in an effort to re‑train myself into an alternative profession. I am uncertain whether the pain in my right hip will enable me to continue this work into the future."
I must determine whether the respondent is likely to have future pecuniary loss that is at least equal to the prescribed amount.
Counsel for the respondent suggested to me that there was an additional component to the respondent's future pecuniary loss based on the proposition that the respondent might stop working because he might not be able to work full‑time as a baker's assistant for the rest of his life to age 65 years. He urged upon me that I give "some credence" to Wade v Allsopp(1976) 10 ALR 353. In that case an intelligent and active 17 year old school boy was severely injured in a road accident. He suffered serious brain stem damage and was in a coma for four months after the accident. Although he made a gradual recovery he had some residual physical disability and was left with deep seated behavioural problems associated with the brain injury. His intelligence was impaired, he was euphoric, his behaviour was eccentric and despite rehabilitative training he had been unable to obtain employment. The trial judge awarded the plaintiff just under $74,000 of which $45,000 was for economic loss. On appeal that amount was regarded as an inadequate assessment and the economic loss component was increased. In the High Court Stephen J said (at 361):
"This is a case with a young man with no established employment record; there is no pre‑injury employer possessing any incentive, whether arising from a sense of moral obligation or otherwise, to assist him in his injured condition. His fields of possible employment, already limited by his purely physical disabilities, are further restricted by his behavioural problems and by his speech defect. Although these latter disabilities no doubt only reduce by some percentage his capacity as a potentially useful member of the work force, their effect upon the likelihood of his being selected for any suitable employment when in competition with other applicants, who do not suffer from like disabilities may be much more marked. There is no necessary correlation between the extent of diminished capacity to perform useful services as an employee due to disabilities and the extent to which the likelihood of actually gaining employment is diminished by the existence of those same disabilities. When those disabilities are behavioural, and when the employment sought is other than one involving only manual labour, experience suggests that the lack of correlation will be likely to be gross. To state this is but to recognise that whereas diminished capacity to perform useful services may be expressed as a percentage figure the process of selecting one from a number of applicants for employment is, on education, an all or nothing affair in which the applicant with diminished capacity may each time be wholly unsuccessful."
Apart from the foregoing passage I do not discern any particular principle in the case cited by counsel for the respondent which might assist me in this matter.
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.

Counsel for the appellant suggests that the basis of the claim for future economic loss is the respondent's evidence that when he last worked as an electrician he was earning at a rate of approximately $600 net per week and that, as a baker's assistant his rate of income was reduced to $500 net per week. The difference is therefore $100 per week. Counsel for the appellant submits that, on the evidence, the only basis for calculating future pecuniary loss is the difference deposed to by the respondent. In a schedule entitled "Assessment of Plaintiff's Future Pecuniary Loss" the appellant calculated $100 net per week by an appropriate multiplier to age 65 years to be $80,580 and then deducted 6 per cent for contingencies resulting in an amount of $75,756. Dealing with loss of future superannuation benefits the appellant, applying the principles enunciated in Yongen v CSR Ltd& Anor (1992) Aust Torts Reports 81‑192, suggested $7,614 as an appropriate figure. Finally, to accommodate hip replacement, with no discount for contingencies, assuming surgery at 15, 25 and 35 years the appellant suggested a component of $11,706. The appellant suggests, based on those calculations, that the respondent's future economic loss should be assessed at $95,076. That amount is below the prescribed amount whether it be that contended for by the appellant or that contended for by the respondent.
Counsel for the respondent contends that the mathematical approach adopted by the appellant is "merely a tool". He urges that the calculation proffered by the appellant is one measure of loss of future earnings but not a measure of loss of earning capacity. Counsel for the respondent submits that the approach adopted by the appellant does not take into account the real chance that the respondent's injury will worsen with time such that he will not be able to work full‑time until the age of 65 years.
Professor Wood said in a report of 29 August 2001:
"It is difficult to justify surgical intervention in a young man with essentially normal imaging…it may be that his degeneration will progress and he may ultimately require hip joint replacement but clearly this should be avoided for as long as possible, particularly in view of his normal radiographic appearance, the fact that there is residual competent articular cartilage in his hip and his age."
He went on to say that the prognosis was difficult to evaluate in view of the minor degenerative changes in the hip at the time of that report.
In a later report of 28 June 2003 Mr Witherow said:
"I don't therefore believe that I am in a position to give him a long term prognosis but certainly given the findings in relation to Jason's hip I don't believe that there is evidence that his hip joint pars is going to give him long term problems."
In his most recent report, that of 23 October 2003 annexed to the respondent's affidavit Mr Witherow said:
"I would have thought that the most likely time that he will come to a hip replacement would not be in the short term but rather I would anticipate that at the earliest it will occur in the medium term. I would therefore assess that if this is likely to happen it is more likely to be in 15‑20 years or so rather than earlier than that. If that was the case then he would be between 45‑50 years of age. That would still be very young to require an arthroplasty and if he did have one at that stage it is likely that he would require to have that revised on two further occasions during a normal life expectancy."
Counsel for the respondent submitted that he may be unable, by reason of degeneration, to work full‑time as a baker's assistant until the age of 65 years. The respondent said in his affidavit:
"I am uncertain whether the pain in my right hip will enable me to continue this work into the future."
His statement of uncertainty is the only evidence offered in support of the contention that he might not, by reason of degeneration, be able to continue in his newly chosen occupation. Mr Witherow described the development of degenerative arthritis as a possibility. He said that such a development would perhaps need to be met by a hip replacement. He certainly did not preclude the respondent continuing as an electrician in the event of a hip replacement. There is no evidence beyond the respondent's stated uncertainty to support the contention advanced that the respondent might not be able to work, by reason of degeneration, to age 65 years. The evidence is, in fact, to the contrary to the effect that, if the possibility of degenerative arthritis does intrude upon the respondent's working life his working life will be interrupted only to the extent required by the operative procedure and any rehabilitation by reason of the need, for example, for physiotherapy.
I am not provided with any description of the requirements of the job of baker's assistant. No medical practitioner has made comment in that regard. Counsel for the respondent urges that I allocate a premium to a calculation of the respondent's future pecuniary loss to accommodate the possibility that degenerative change would result in the respondent being unable to work as a baker's assistant until the age of 65 years. He suggested that the premium should be 20 per cent and that I should then add a component for future gratuitous services.
I accept that the exercise to be undertaken by me cannot be purely arithmetic. I accept that I must act on a view, reasonably open on the evidence, which most favours the respondent. The evidence in this matter does not, however, support the contentions being advanced on his behalf. If I assume however that it is appropriate to "round off" the appellant's assessment at $100,000 and apply, as suggested by the respondent, a premium of 20 per cent the figure arrived at would be $120,000. That would be slightly in excess of the prescribed amount adopted by the learned Acting Principal Registrar but well below the current prescribed amount.
Counsel for the respondent referred to the change in the definition of the prescribed amount as at 5 October 1999. He contended that the current prescribed amount is for current statutory purposes, that it is new law relating to the calculation of the new prescribed amount. He contended that, in the absence of published information based on the old definition the prescribed amount that should currently apply is $119,048 which was that relating to the financial year ended 30 June 2000. He argued that, to the extent that the current prescribed amount should be used for the purpose of determining access to statutory benefits there was no issue. He further argued that because the prescribed amount, as previously defined, related to the question of leave to commence an action for damages and because of the presumption against retrospectivity the sum of $119,048 is the appropriate amount.
Counsel for the appellant accepted that the definition of the prescribed amount had changed but referred to the Act as re‑printed as at 14 September 2001 and to the definition of "prescribed amount" therein. The definition refers to the amount being $119,048 for the financial year ending on 30 June 2000 and, in relation to any subsequent financial year to an amount calculated by varying the prescribed amount for the preceding financial year by reference to the wages cost index published by the Australian Statistician. It provided for an alternative means of calculation in the event of there being no publication.
Counsel for the appellant referred me to a number of cases decided in this Court where the judge concerned applied the prescribed amount as at the date of the hearing. He mentioned Jabar‑Khail v Troon Holdings Pty Ltd [2004] WADC 108, Hanna‑Pauley v David Jones Ltd [2004] WADC 69 and Downsborough v Pinnacle Services Pty Ltd [2004] WADC 197. In each of those cases the judge concerned referred to the prescribed amount as being the amount prescribed by the Act as at the date of the hearing. There is not, in any of the judgments, discussion as to the point raised in the first ground of appeal before me.
Counsel for the appellant also referred me to Richardson v Whymark Nominees Pty Ltd [2004] WASCA 208 a decision handed down by the Full Court of the Supreme Court of Western Australia on 16 September 2004. The appeal concerned a judgment in this Court dated 3 September 2002 and an award of damages in respect of personal injuries suffered by the appellant in May 1996. The appeal was only concerned with the adequacy of the award of damages. Before this Court the appellant's action had been dismissed because the award for future pecuniary loss did not exceed the statutory threshold stipulated pursuant to s 93D of the Workers' Compensation and Rehabilitation Act 1981. Steytler J said (at p 86):
"Under s 93D(1)…as it then stood, damages could only be awarded to a worker at common law if the disability in question resulted in the death of the worker or if it was a "serious" disability. Under s 93D(2) a disability was a serious disability if, and only if, it was assessed in the manner prescribed in s 93D(3), as having a degree of 30 per cent or more or if the future pecuniary loss resulting from the disability was of an amount that was at least equal to the prescribed amount. In this case it was not established (or even contended) that the degree of disability was 30 per cent or more. Consequently the question of whether or not the disability was a serious disability, and hence whether or not damages could be awarded at common law, depended upon the question whether or not the future pecuniary loss resulting from the disability was at least equal to the prescribed amount, being, at the date of trial, an amount of $126,145 and, at the date of judgment, an amount of $130,609.
Under s 93A as it then stood 'future pecuniary loss' was defined to mean 'pecuniary loss other than that which has already been incurred at the time when the amount of that loss is required to be determined by a court'.
Counsel for the appellant contended that the time when the amount of loss is required to be determined by a court is the first day of trial. Counsel for the respondent, on the other hand, contended that it was on the date of judgment. The only authorities referred to by either counsel in this respect were the judgment of the High Court in O'Brien v McKean (1968) 118 CLR 540 and an unreported decision of this Court, Eltin Ltd v Dowsett [2001] WASCA 101. The first of those cases turned upon rather different circumstances and did not involve a consideration of any similar statutory prescription. It is consequently of no assistance. As to the second of them, that of Elton Ltd v Dowsett, it seems there to have been conceded that 'the prescribed amount' for the purposes of the then s 93D(2)(b) was the amount prescribed as at the date of judgment, from which it might be inferred (if that concession was rightly made) that is the date when the amount of the future pecuniary loss 'is required to be determined'.
While it is, for reasons which I will explain, unnecessary to decide the point in this case, I would have thought that there is something to be said for the notion that the words 'when the amount of that loss is required to be determined by a court', in the definition of 'future pecuniary loss' have the effect that the determination is required to be made at the conclusion of the evidence in the trial, in this case being 10 August 2001. That seems to me (albeit the matter has not been argued fully) to follow from the ordinary meaning of the words used. The Court cannot determine the amount of the future pecuniary loss until all of the evidence bearing upon it has been heard out, but once the evidence is in, the Court is, of course, then required to make a determination in respect of it. If that is so, 'the prescribed amount' for the purposes of s 93D(2)(b) should be that at the date of conclusion of evidence in the trial and not that at the date of judgment. Had the legislature intended otherwise, it would have been a simple matter for it to have said so.
However, given the conclusion of which I have arrived in respect of the other grounds, this rather tentative conclusion can have no consequence as regards the outcome of the appeal."
As can be seen from the foregoing Steytler J, insofar as he was concerned with the prescribed amount, was concerned as to whether or not the future pecuniary loss resulting from the disability was at least equal to the prescribed amount, being, at the date of trial, an amount of $126,145 and, at the date of judgment, an amount of $130,609. He concluded that the then s 93D of the Act precluded any award of common law damages in the case before him whichever of the points for the estimation of future pecuniary loss was adopted. It followed, he said, that the appellant's action was rightly dismissed. He noted that in Elton Ltd v Dowsett [2001] WASCA 101 it had been conceded that "the prescribed amount" for the purposes of the then s 93D(2)(b) was the amount prescribed as at the date of judgment adding "if that concession was rightly made". He then went on to say that it was unnecessary to decide the point in the case before him and noted that the matter had "not been argued fully". He was dealing with a reference to the prescribed amount under s 93D(2)(b) as opposed to the reference under s 93D(5)(c). To the extend that Malcolm CJ and Jenkins J agreed with Steytler J as to the point at issue their judgments are similarly unhelpful when it comes to the question of granting leave pursuant to s 93D(5) of the Act.
The judgment in this Court as to future economic loss was as follows:
Future loss of income $68,299.00
Future loss of superannuation benefits $ 6,220.68
$74,519.68
It follows that when the matter came before the Full Court, if the determination of the trial judge remained undisturbed, then his assessment of future pecuniary loss was not only less than the two amounts referred to in the judgment of Steytler J but also less than the prescribed amount as at 5 October 1999, an amount of $109,650. The argument before the Full Court appeared to be concerned with whether it was appropriate to assess damages as at the date of trial or as at the date of judgment. It appears to have been conceded, for the purposes of that argument, that if the assessment was properly made as at the date of trial then the lower prescribed amount referred to by Steytler J was appropriate and if the assessment was properly as at the date of judgment then the higher of the two amounts referred to by his Honour was applicable. It follows that the issue before me was not, it seems, canvassed or decided.
The matter in issue before me was considered in Morgan v EK & MM Costello T/as Wanneroo Smash Repairs Pty Ltd [2004] WASCA 260, a decision handed down by the Full Court of the Supreme Court of Western Australia on 18 November 2004. The matter dealt with an appeal from this Court where the learned trial judge had found that the appellant's injuries, when considering his claim for damages, were caused by the respondent's negligence but that the damages suffered by the appellant in respect of future pecuniary loss were assessed as being less than the threshold amount for the purposes of s 93D of the Act. The judgment in this Court was handed down on 7 August 2002. One ground of appeal before the Full Court was that the ruling by the learned trial judge that the prescribed amount as at the date of trial was $130,609 was wrong in law. In that regard Malcolm CJ said (at par 8):
"It was common ground at the trial that, in order to obtain an award of damages, if the respondent was found totally or partially liable to the appellant in respect of the alleged accident, the appellant was required to establish future pecuniary loss of $130,609, being the threshold amount as from 1 July 2002 pursuant to s 93D of the Workers' Compensation and Rehabilitation Act 1981 (WA) as it applied at the relevant time. At the appeal, however, it was common ground that the correct prescribed amount was $109,650 as previously indicated."
Dealing briefly with that particular ground of appeal Malcolm CJ said (at pars 147‑149):
"On 5^th October 1999, the Workers Compensation and Rehabilitation Act 1981 (WA) was amended by the Workers' Compensation and Rehabilitation Amendment Act 1999 (WA) which came into force on that day. Section 32(5) provided that sections 93D, 93E and 93F of the Workers' Compensation and Rehabilitation Act 1981 (WA) were repealed and sections 93D, 93E, 93F and 93G were substituted. In particular, section 32(7) provided that the amended provisions did not affect the award of damages in proceedings commenced before the "assent day" (ie, 5^th October 1999) or for the commencement of which the District Court had given leave under the former provisions before the assent day, and that the former provisions would continue to apply to such proceedings. As at 5^th October 1999, the prescribed amount under the former provisions for the purposes of this case was $109,650, as was correctly conceded at the hearing of the appeal. In the result, the total award of damages in respect of future pecuniary loss did not exceed the threshold sum of $109,650. It follows that the action was rightly dismissed and that for that reason the appeal should be dismissed."
Murray J (at par 152) noted that the relevant ground of appeal complained that all at the trial in this Court had misunderstood what was the prescribed threshold amount for the award of damages under s 93D of the Act. He agreed, having read in draft the judgment of Malcolm CJ, with that judgment indicating that there was nothing that he would wish to add. Wheeler J agreed with Malcolm CJ and made no comment as to the relevant point.
Section 32 of the Workers' Compensation and Rehabilitation Amendment Act 1999 deleted the definition of "prescribed amount" and substituted a different definition. Section 93D of the then existing Act was then repealed. The replacement s 93D dealt with the meaning of the phrase "degree of disability" for the purposes of s 93E, as amended. Section 32(7) of the amending Act provides that the amending provisions do not affect the awarding of damages in proceedings commenced before the assent day or for the commencement of which the District Court gave leave under the former provisions before the assent day. The section provides that the former provisions continue to apply in relation to those proceedings. The assent day was 5^th October 1999. The matter before me is neither a proceeding commenced before the assent day or a proceeding the commencement of which this Court gave leave under the former provisions before the assent day. In Morgan v Costello (supra) I assume that the proceeding in this Court was commenced before the assent day as it was not a case in which leave had been given. If my assumption is correct then s 32(7) of the amending Act would have applied and the former provisions would have continued to apply in relation to that proceeding. I conclude therefore that Morgan v Costello does not determine the issue before me.
The proceedings before me were commenced on 29 April 2004 when the respondent filed an application for leave to commence proceedings. His application did not fall within the savings provision in s 32(7) of the Workers' Compensation and Rehabilitation Amendment Act. In Dossett v TKJ Nominees Pty Ltd [2003] HCA 69 Mr Dossett was in a similar situation in that he had not commenced proceedings before the assent day and this Court had not given leave under the former provisions for the commencement of proceedings before the assent day. He contended before the High Court that he was entitled to proceed under the earlier regime even though his application did not fall within the savings provisions in s 32(7). He contended that, although his application was not saved by s 32, it was saved by the general savings provisions in s 37 of the Interpretation Act (WA) and, in particular by pars (b), (c) and (f) of s 37(1).

Section 37(1) of the Interpretation Act provides:
"Where a written law repeals an enactment, the repeal does not, unless the contrary intention appears –
. . .
(b)affect the previous operation of the enactment repealed or anything duly done or suffered under that enactment;
(c)affect any right, interest, title, power or privilege created, acquired, accrued, established or exercisable or any status or capacity existing prior to the repeal;
. . .
(f)affect any investigation, legal proceeding or remedy in respect of any such right, interest, title, power, privilege, status, capacity, duty, obligation, liability, burden of proof, penalty or forfeiture, and any such investigation, legal proceeding or remedy may be instituted, continued, or enforced, and any such penalty or forfeiture may be imposed and enforced as if the repeal in written law had not been passed or made."
In considering these matters McHugh J said (par 11):
"In my opinion, s 32 contains no foundation for the inference of contrary intention upon which TKJ Nominees relies. Section 32(7) authorises the awarding of damages where proceedings for damages have been commenced and where leave to issue proceedings has been given but no action for damages has commenced. It has nothing to say about whether the right to apply for leave may continue. Nor does it say anything about the effect and operation of section 37(1) of the Interpretation Act. But in any event section 37(2) makes it clear that the inclusion in a repealing Act of an express saving provision does not prejudice the operation of section 37 with respect to the effect of the repeal … Section 32(7) deals with claims for damages that either have been commenced or by the grant of leave may be commenced. It says nothing whatever about pending applications for leave to commence proceedings for damages. Nor does it contain any statement that the two classes of proceedings identified in section 32(7) are the only proceedings to which the former provisions of section 93D continue to apply. Nor does section 32(7) contain any statement that it applies despite anything in any other statute. Accordingly, section 32(7) did not affect an implied repeal of either section 37(1) or section 37(2) of the Interpretation Act. It follows that section 37 of the Interpretation Act entitled Mr Dossett to proceed with his pending application for leave which continues to be governed by the former provisions of section 93D of the Workers' Compensation and Rehabilitation Act 1981."
The other members of the Court came to much the same conclusion.
The respondent in the matter before me, having suffered an injury prior to the assent day, made application for leave pursuant to the provisions of the relevant Act as they existed prior to the assent day. It would be, I conclude, anomalous if those who had suffered an injury prior to the assent day and had commenced proceedings for damages prior to the assent day or been given leave under the former provisions to do so prior to the assent day could have their proceedings dealt with under the former provisions and the respondent, having suffered an injury prior to the assent day and made application for leave subsequent to the assent day, is subject to the new provisions. Kirby J in Dossett (at par 80) pointed out that in the common law there is a strong presumption of the operation of legislation that amendments to a statute will ordinarily be construed as having a prospective operation only, particularly so far as they purport to effect individual rights and privileges. He said:
"Generally speaking, it is presumed that legislation does not have a retrospective operation on rights without clear provision to that effect. Where the rights are merely procedural, a different presumption will sometimes be given effect. But in the instant case, the suggested interposition of an abolition of the entitlement to seek the District Court's approval to commence proceedings of a claim at common law, can hardly be described as procedural only."
Given that the amending legislation repealed the pre‑existing definition of "the prescribed amount" and substituted a new definition for different purposes without expressly stating that the new definition would apply to all proceedings not caught by s 32(7) of the amending Act I conclude that the respondent's application for leave should be dealt with on the basis that the prescribed amount was that which applied as at the date of assent, $109,650.
The basis of the first ground of appeal is that the Acting Principal Registrar erroneously applied the sum of $119,048 which is the prescribed amount in relation to the financial year ended 30 June 2000 pursuant to the provisions inserted by the Workers' Compensation and Rehabilitation Amendment Act 1999. In his written submissions to the Acting Principal Registrar, which were adopted by counsel for the respondent for the purposes of the appeal, counsel for the respondent contended that his client was likely to suffer future pecuniary loss in excess of the prescribed amount which existed prior to the amendments being made to the Act on 5 October 1999, being the sum of $109,650. In his oral argument before me he submitted that the appropriate amount was the amount applied by the Acting Principal Registrar. The hearing of this appeal is a hearing de novo. As a matter of law I have concluded that the prescribed amount applicable is the sum of $109,650. "Future pecuniary loss" means pecuniary loss other than that which has already been incurred at the time when the amount of that loss is required to be determined by a court. I must determine whether the respondent is likely to have future pecuniary loss resulting from the disability of an amount that is at least equal to the prescribed amount. I accept the submission by counsel for the respondent that in these circumstances a strictly arithmetic approach is inappropriate. I am not prepared to determine this matter on the basis that the respondent's future pecuniary loss resulting from the disability suffered by him is less than the prescribed amount which I have found applicable. I conclude, therefore, that the respondent's future pecuniary loss is likely to be at least equal to the prescribed amount. I dismiss the appeal.