HOMANS v Watts
[2000] WADC 104
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: HOMANS -v- WATTS [2000] WADC 104
CORAM: WILLIAMS DCJ
HEARD: 3 APRIL 2000
DELIVERED : 20 APRIL 2000
FILE NO/S: CIV 414 of 1999
BETWEEN: GLENN RAYMOND HOMANS
Plaintiff
AND
DAVID WATTS
Defendant
Catchwords:
Workers compensation - Alternative rights against employer for damages at common law - Application for leave to bring action - Leave granted by Registrar - Appeal against decision of Registrar.
Legislation:
Workers' Compensation and Rehabilitation Act 1981 (WA) s93D
Result:
Appeal dismissed
Representation:
Counsel:
Plaintiff: Mr T Heard
Defendant: Mr H M Healy
Solicitors:
Plaintiff: Bradford & Co
Defendant: Phillips Fox
Case(s) referred to in judgment(s):
Andrews v Electricity Corporation, unreported; DCt of WA; Library No 4454; 22 May 1995
Cordisco v Varna Pty Ltd, unreported; DCt of WA; Library No 4990; 19 July 1996
Forrest v Bunnings Forrest Products Pty Ltd, unreported; DCt of WA; Library No D970345; 12 November 1997
Fraser v South Cross Homes (WA) Inc (1994) 11 SR WA 68
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
Mayne v Mayne Nickless Ltd t/as Wards Express, unreported; FCt SCt of WA; Library No 960223; 26 April 1996
Pollitt v Midland Brick Co (1995) 14 SR (WA) 251
Salvatore Bonnaro v City of Stirling, unreported; DCt of WA; Library No 4204; 27 September 1995
Sampson v Industrial Progress Corporation Pty Ltd, unreported; FCt SCt of WA; Library No 970058; 21 February 1997
Thomas v O'Shea (1989) Aust Torts Reports 80-251
Case(s) also cited:
Sgro v New Cement Co Pty Ltd, unreported, DCt of WA; Library No 4564; 3 August 1995
WILLIAMS DCJ:
Introduction
This is an appeal by the defendant against an order of a Registrar made on 15 September 1999 whereby he granted the plaintiff leave pursuant to s93D of the Workers' Compensation and Rehabilitation Act 1981 to commence proceedings against the defendant for damages in respect of disabilities suffered by the plaintiff in respect to an accident on 12 December 1997.
Principles applicable in relation to appeals
The jurisdiction exercised by the Registrar of the District Court in relation to interlocutory matters is a delegated jurisdiction. A condition of the delegation of this jurisdiction is the provision for a complete review de novo before a Judge of the District Court. In conducting such an appeal, each party may rely on evidence given in affidavit or orally before the Registrar. Furthermore, a re-hearing of the matter would also permit the admission of further evidence, without leave, subject to the discretion of the Judge to exclude such evidence where it is irrelevant or where it would be unjust to admit it. It would be wrong to adopt a more restrictive approach: Hazart Pty Ltd v Rademaker (1993) 11 WAR 26 per Malcolm CJ at 28-29.
Principles applicable in relation to applications under s93D
The plaintiff considers that he is likely to suffer future economic loss in excess of $109,650 (the prescribed amount) in accordance with s93D(2)(b) of the Workers' Compensation and Rehabilitation Amendment Act 1993 ("the Act"). Under s93D(4) proceedings in which damages are sought are not to be commenced without the leave of the District Court. Under s93D(5)(c) leave is to be given if the Court determines that the plaintiff is likely to have future pecuniary loss resulting from the disability of an amount that is at least equal to the prescribed amount.
Future pecuniary loss includes not merely future loss of earnings but also future losses such as superannuation, medical and other out of pocket expenses: Andrews v Electricity Corporation, unreported; DCt of WA; Library No 4454; 22 May 1995; Pollitt v Midland Brick Co (1995) 14 SR (WA) 251; Cordisco v Varna Pty Ltd, unreported; DCt of WA; Library No 4990; 19 July 1996.
When assessing a likely future pecuniary loss on affidavit evidence, usually it will be appropriate to act on the view reasonably open on the evidence which most favours the plaintiff: Sampson v Industrial Progress Corporation Pty Ltd, unreported; FCt SCt of WA; Library No 970058; 21 February 1997. At p5 of that decision Parker J said as follows:-
"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 attempt 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 plaintiff. Both parties to this appeal accepted this view. It is the approach which commended itself to LA Jackson DCJ in Sgro v New Cement Co Pty Ltd, unreported, DCt of WA; Library No 4564; 3 August 1995."
It is now well settled that the term "likely" in the context of s93D(5)(c) conveys the notion of a substantial ie. a real and not a remote chance, regardless of whether it is less or more than 50 per cent: Fraser v South Cross Homes (WA) Inc (1994) 11 SR WA 68; Mayne v Mayne Nickless Ltd t/as Wards Express, unreported; FCt SCt of WA; Library No 960223; 26 April 1996 per Kennedy J, Murray and Parker JJ concurring, Sampson v Industrial Progress Corporation Pty Ltd (supra).
The Court should always lean the plaintiff's way when there is a borderline situation: Salvatore Bonnaro v City of Stirling, unreported; DCt of WA; Library No 4204; 27 September 1995, Blaxell DCJ at p4.
It is not appropriate during proceedings of this nature to simply say that there is a preponderance, in the sense of simply being more numerically, of medical practitioners taking one point of view rather than another. Any medical specialist's opinion is quite capable of being accepted notwithstanding the contrary view of others. There is always to be a "real not fanciful" prospect of success where an appropriate medical specialist supports a plaintiff's case: Forrest v Bunnings Forrest Products Pty Ltd, unreported; DCt of WA; Library No D970345; 12 November 1997; Jackson DCJ at p7.
The facts
The plaintiff was born on 19 May 1960 and is presently aged 39 years. He has limited schooling and has worked primarily in manual occupations. The plaintiff was employed by the defendant as a sales representative which required him to spend a significant amount of time on his feet including manually moving boats. He suffered an injury in the course of his employment with the defendant on 12 December 1997 when he stepped from a tractor onto rough ground. The injury was to his ankle.
The Registrar was of the view that the medical evidence indicates fairly clearly that the plaintiff has sustained a significant injury to his ankle and notwithstanding disagreements between the various medical experts the Registrar was of the view that the injury was sufficient to prevent the plaintiff pursuing a vocation which requires him to stand or walk for significant parts of his working day.
The Registrar considered that relevant because of the fact that the plaintiff had previously followed vocations which for the most part required a degree of mobility and the ability to stand for prolonged periods of time. The Registrar came to the conclusion that the plaintiff could not pursue those vocations or the vocation in which he was engaging at the time of his injury.
The Registrar considered the principles in Thomas v O'Shea (1989) Aust Torts Reports 80-251 applied to applications under s93D of the Act and that those principles indicate that a plaintiff who comes before the Court and who demonstrates to the satisfaction of the Court either that his previous earning capacity has been eliminated or alternatively that he has attempted to obtain work within the limitations of his residual capacity and has been unable to do so has satisfied the onus placed upon him.
The Registrar was of the view that the onus thereafter shifted to the defendant to demonstrate that there is a vocation which the plaintiff could successfully pursue with his residual capacity and to demonstrate the market for that vocation and the earnings from it.
The Registrar was of the view that the plaintiff had demonstrated that he could not continue with his career as a salesman which required him to be on his feet for significant periods of time during his working day.
The plaintiff had testified to the fact that he had attempted with the assistance of rehabilitation providers to obtain alternative work and that he had not been able to do so. The Registrar was therefore of the view that the plaintiff had satisfied the onus which was upon him and the onus thereafter shifted to the defendant to demonstrate that there is a job for which the plaintiff had the necessary capacity and to demonstrate the availability of work within that field and the earnings from it.
The Registrar was of the view that the defendant had not attempted to undertake that task. The Registrar accepted that the plaintiff had some residual capacity and any sedentary job in which he carried out the majority of his duties whilst seated would be within his physical capacity. The plaintiff had left school in Year 10 and followed a series of vocations which ordinarily do not require high educational standards and there was nothing to indicate what level of educational capacity the plaintiff had.
The Registrar was of the view that the plaintiff probably had the capacity to work as a clerk if a job in that area was available to him. However there was nothing before him which was helpful in indicating what the market might be for a person seeking a job as a clerk in Albany. The Registrar noted that the plaintiff resides in Albany and that there was nothing before him which was at all helpful in indicating what the market might be for a person who is seeking a job as a clerk in Albany.
The Registrar accepted that it was appropriate to adapt as a working figure the proposition that the plaintiff would earn at least the adult minimum wage of $291 per week. The plaintiff was earning $390 net per week and the Registrar calculated that the difference between those figures for the remainder of the plaintiff's working life to the age of 65 was approximately $70,000.
The Registrar noted that assumed the plaintiff would walk into a job "tomorrow" and would remain in that job permanently throughout the remainder of his working career. He considered that those assumptions were unrealistic and took the view that the defendant had not succeeded in demonstrating that there are positions available within Albany which the plaintiff could obtain and hold in the remainder of his working life. The Registrar considered that the plaintiff had made out his case and granted leave.
The defendant's submissions
It is the defendant's submission that appropriate alternative work is available to the plaintiff in the Albany area and relies on annexure SJC2 to the affidavit of Samantha Coleman sworn 5 November 1999. That document is a labour market analysis and report prepared by Mr Kim Hodge a Bachelor of Economics and Labour Market Economist. The purpose of the report is said to be to provide an occupational analysis of job availability in respect to a number of occupations which it is said that the plaintiff could follow.
That report indicates that in the Shire of Albany in respect to the position of general clerk the availability is limited to competitive, for motor vehicle and related product sales persons as limited, for telemarketers as limited, for video store attendants as limited, for sales assistants as competitive and for sales representatives as competitive.
In my view it cannot be said from that report that appropriate alternative work is available to the plaintiff in the Albany area. That is particularly the case if the plaintiff has an injury which would put him into the category of last on/first off in the labour market.
In my view the medical evidence indicates that as a result of the accident the plaintiff's future employment has been jeopardised. In a medical report of 6 April 1999 Dr Tim Layton, the plaintiff's general practitioner, said as follows:
" It is in my opinion that as things stand at the moment he could not possibly return to work doing his previous duties with South Seas Marine and as most of his previous jobs that being in the navy, railway police, storeman, security work and bar management also include being on his feet he would not be suitable for any similar type jobs either.
His injury is now almost 18 months old and continues to cause him significant disability and therefore I would consider it most unlikely that he will be able to return to a job that involves standing for longer than a few minutes and certainly he would be unable to undertake any that require lifting or pushing."
In a report of Mr F G Bell, Orthopaedic Surgeon, dated 6 August 1998 Mr Bell states that the plaintiff does have a capacity to return to work as a sales person but it would be very limited working on a clear level surface say half days five days per week.
In a report dated 4 June 1998 Mr David Wright, an Orthopaedic Surgeon, says that the plaintiff would not be able to tolerate lengthy periods of time on his feet and it would be much better for him to have work experience in a sedentary job.
It is the submission of counsel for the plaintiff that a conservative estimate of the plaintiff's likely future loss based on the wage that he was earning at the time of his injury, which was $390 per week, would be $272,282.65. The loss of superannuation would amount to approximately $19,000.
Counsel for the plaintiff accepted that the plaintiff had some retained earning capacity but indicated that it would have to be 70 per cent to be less than the threshold.
In my view the Registrar has correctly dealt with the matter. The defendant in my view has failed to discharge the onus which was upon it.
It follows that the appeal should be dismissed.
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