JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE FULL COURT (WA)
CITATION: KULIGOWSKI -v- METROBUS [2002] WASCA 170
CORAM: MALCOLM CJ
WALLWORK J
STEYTLER J
TEMPLEMAN J
McLURE J
HEARD: 1 FEBRUARY 2002
DELIVERED : 24 JUNE 2002
FILE NO/S: FUL 174 of 2000
BETWEEN: MAREK KULIGOWSKI
Appellant (Plaintiff)
AND
METROBUS
Respondent (Defendant)
Catchwords:
Estoppel - Decision by review officer on application under Workers' Compensation and Rehabilitation Act 1981 (WA) - Finding that appellant sustained injury of minor severity in the course of his employment and injury "resolved' by 29 March 1994 - Subsequent disability did not result from injury suffered in the course of employment - Finding legally indispensable to conclusion - Decision of review officer not a final decision - Appellant was estopped from seeking leave to commence common law action for damages
Legislation:
Limitation Act 1935 (WA), s 47A
Workers' Compensation and Assistance Amendment Act 1990 (WA)
Workers' Compensation and Rehabilitation Act 1981 (WA), s 5, s 57A, s 57B, s 58, s 60, s 62, s 84A, s 84B, s 84I, s 84ZA, s 84ZD, s 84ZE, s 84ZF, s 84ZN, s 84ZW, s 86, s 93D, s 116, s 117, s 136, s 145E, s 145F
Workers' Compensation and Rehabilitation Act No 34 of 1999 (WA)
Workers' Compensation and Rehabilitation Amendment Act (No 2) 1992 (WA)
Workers' Compensation and Rehabilitation Amendment Act 1993 (WA)
Result:
Appeal dismissed
Category: A
Representation:
Counsel:
Appellant (Plaintiff) : Mr B L Nugawela
Respondent (Defendant) : Mr G T W Tannin & Ms E C Ganderton
Solicitors:
Appellant (Plaintiff) : D'Angelo & Partners
Respondent (Defendant) : State Crown Solicitor
Case(s) referred to in judgment(s):
Accident Compensation Commission v Detar [1989] VR 931
Ainslie v Ainslie (1927) 39 CLR 381
Archer v Howell (1992) 7 WAR 33
Austin v Mills (1853) 9 Exch 288; 156 ER 123
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Blair v Curran (1939) 62 CLR 464
Brewer v Brewer (1953) 88 CLR 1
Canale v Commissioner of Main Roads (1982) 1 WCR 1
Collector of Customs v Agfa‑Gevaert Ltd (1996) 186 CLR 389
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1994) 43 FCR 280
Commercial Industries v Stegic, unreported; FCt SCt of WA; Library No 9052; 13 September 1991
Coroneo v Kurri Kurri & South Maitland Amusement Co Ltd (1934) 51 CLR 328
D A Christie Pty Ltd v Baker [1996] 2 VR 582
David Jones (Canberra) Pty Ltd v Zapasnik (1982) 42 ACTR 6
Egri v DRG Australia (1998) 19 NSWLR 600
Essex County Council v Essex Incorporated Congregational Church Union (1963) AC 808
Green v Green (1935) 37 WALR 76
Hall v Nominal Defendant (1966) 117 CLR 423
Jackson v Goldsmith (1950) 81 CLR 446
Jones & Hudson v Secretary of State for Social Services (1972) AC 944
Continue reading Kuligowski v Metrobus
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- AGLC
- Kuligowski v Metrobus [2002] WASCA 170
- Case
- [2002] WASCA 170
- Decision Date
CaseChat Overview and Summary
The central legal issue was whether the review officer's decision constituted a final decision under the Act and whether Kuligowski was estopped from pursuing a common law action. The court had to examine the reasoning of the review officer and assess whether the findings were legally indispensable and supported by evidence. The court also needed to consider whether the decision was subject to further review or appeal under the Act.
The court found that the review officer's decision was not a final decision and that Kuligowski was estopped from seeking leave to commence a common law action. The court reasoned that the review officer's findings were legally indispensable and supported by evidence. The court referred to a similar case, Wesfarmers Federation Insurance Limited v State Government Insurance Commission and Bass, to support its conclusion. The court held that the review officer's decision did not involve an error of law and that Kuligowski could not challenge the decision through a common law action.
The court's final order was that Kuligowski was estopped from seeking leave to commence a common law action for damages. The decision of the review officer was upheld as correct and final.
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
Established by: WALLWORK J
In my opinion, that conclusion was clearly correct. A similar issue arose in Wesfarmers Federation Insurance Limited v State Government Insurance Commission and Bass, unreported; FCt SCt of WA; Library No 960286; 24 May 1996. In that case there was an appeal to the Full Court from a decision of a Compensation Magistrate on appeal from a review officer. The review officer had held that the worker's incapacity for work as from 30 November 1993 resulted from a work‑related accident on 27 January 1993 and held that the insurer on risk as from 1 July 1990 was liable to indemnify the employer. The insurer maintained that the incapacity for work resulted from an even earlier accident on 24 November 1986. An appeal to a Compensation Magistrate was dismissed. The insurer had contended before the learned Magistrate that the review officer had erred in law in finding that the nature of the injury on 27 January 1993 was such that it could cause subsequent incapacity. The Magistrate rejected that contention. The Magistrate said that it was implicit in the review officer's reasons that he decided that the incident on 27 January 1993 resulted in more than a temporary aggravation. The Magistrate then said:"Once that view of the review officer's deliberations is reached, it becomes impossible to conclude that there has been an error of law. Before that can happen the findings must be made in the complete absence of supportive evidence." In reaching that conclusion the Magistrate referred to Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355 per Mason CJ and Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155 – 156 per Glass JA to support the conclusion that as a matter of law there was evidence to support the review officer. The review officer also referred to Canale v Commissioner of Main Roads (1982) 1 WCR 1 at 163. In his judgment in the Full Court Steytler J said at 10 – 11 that the review officer's reference to Canale "was appropriate" in that, if a later injury following upon an original compensable injury:"was merely a source of temporary pain and inconvenience to the worker and the subsequent incapacity was ascribable solely to the first injury, in the sense that it was not caused by or even contributed to by the second injury, then the appellant could not be required to indemnify the employer in respect of that capacity." In these circumstances it was held that the review officer mis‑stated the relevant test, because he considered that the liability of the employer was established that the incident on 27 January 1993 "was of such a nature as could well originate trouble in its own right". This approach failed to address the question of actual causation as distinct from potential causation. That would have required consideration of the issue whether the "trouble" which it did originate was temporary or more permanent and, if the latter, that "trouble" was a contributing cause of the worker's incapacity. In my opinion the failure to take into account a relevant consideration involves an error of law.