Liu v Inghams Enterprises Pty Ltd
[2007] WASCA 134
•8 MARCH 2007
LIU -v- INGHAMS ENTERPRISES PTY LTD [2007] WASCA 134
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASCA 134 | |
| THE COURT OF APPEAL (WA) | 26/06/2007 | ||
| Case No: | CACV:23/2006 | 8 MARCH 2007 | |
| Coram: | STEYTLER P WHEELER JA PULLIN JA | 8/03/07 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | ZHEN LIU INGHAMS ENTERPRISES PTY LTD |
Catchwords: | Workers compensation Alternative rights against employer for damages at common law and statutory compensation Appeal from Compensation Magistrate Error of law Alleged denial of natural justice by Review Officer |
Legislation: | Nil |
Case References: | Kioa v West (1985) 159 CLR 550 Twist v Randwick Municipal Council (1976) 136 CLR 106 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : LIU -v- INGHAMS ENTERPRISES PTY LTD [2007] WASCA 134 CORAM : STEYTLER P
- WHEELER JA
PULLIN JA
- Appellant
AND
INGHAMS ENTERPRISES PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : COMPENSATION MAGISTRATES COURT
Coram : MS P M HOGAN CM
File No : CM 121 of 2005
(Page 2)
Catchwords:
Workers compensation - Alternative rights against employer for damages at common law and statutory compensation - Appeal from Compensation Magistrate - Error of law - Alleged denial of natural justice by Review Officer
Legislation:
Nil
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr K S Pratt
Respondent : Mr J R Ludlow
Solicitors:
Appellant : Hoffmans
Respondent : Dibbs Abbott Stillman
Case(s) referred to in judgment(s):
Kioa v West (1985) 159 CLR 550
Twist v Randwick Municipal Council (1976) 136 CLR 106
(Page 3)
1 JUDGMENT OF THE COURT: The appellant was employed by the respondent in 1990. She worked primarily as a chicken boner. Around Christmas 2001 she began to experience pain and swelling in her hands while working. This continued even when she was given alternative duties. After taking several periods of leave in an attempt to recover, she was placed on a graduated work programme. However, a few months after that programme began, her employment was terminated by the respondent.
2 The appellant continued to experience symptoms after her dismissal. She consulted a number of doctors. Some of these believed that the problems with her hands were work-related and caused by overuse. Others believed that she suffered from inflammatory polyarthritis, a condition which was exacerbated by, but not caused by, her work for the respondent.
3 The appellant claimed workers compensation payments from the respondent. The respondent arranged for clandestine video surveillance of the appellant while she undertook a range of everyday tasks. It provided an edited copy of the videotape to various doctors who had previously assessed the appellant. Several of them, on seeing the footage, expressed the opinion that the appellant had been exaggerating her injuries and that she was fit to return to work or at least to alternative duties.
4 The appellant learned of the existence of the video footage at a preliminary review hearing held in respect of her claim for compensation on 9 November 2004. She was given an edited copy of the video footage (presumably identical to that given to the doctors) on about 16 November 2004. By letter dated 21 January 2005 she asked the Review Officer who had the conduct of the matter to direct that she be given the unedited version of the footage. By letter addressed to the respondent dated 27 January 2005, a copy of which was sent to the appellant, the Review Officer responded to the request as follows:
"Finally, as for the applicant's request for the unedited version of the video surveillance it is difficult to understand precisely why the applicant requires these tapes and given the review is scheduled to commence in a matter of 2 working days, I cannot see what will be achieved by making such an order even if this order could be complied with given the time available. Perhaps all I can say is that I will hear submissions from the applicant on this point at or during the course of the review and should I be
(Page 4)
- satisfied there is a need for the unedited tapes to be provided then an order will be made along those lines. As it stands however, I will not make any order at this time requiring the respondent [to] provide the unedited tapes to the applicant."
5 At the scheduled hearing of the review, on 1 February 2005, the Review Officer returned to the topic. He said:
"You want to expand it [sic] and go into that issue with me about why it's required and those sorts of things. We'll hear from the respondent, and we'll go from there. The alternative is if I'm going to see this video at some stage, we'll observe it and then if you've got concerns about whatever it is with that video, we can deal with it at that point in time."
6 The appellant was represented at the hearing by a lay advocate who had been instructed by a firm of solicitors. She responded to the Review Officer's suggestion as follows:
" …it seems that the employer is not willing to disclose the full copy of the tape, and if that's the way they chose to run the application, if that's their view, then I think I'll make submissions as to the reliability of that video surveillance in due course on the substantive application."
7 After further discussion, the Review Officer said that he could only "make a judgement call" once he had seen all of the evidence including, if necessary, the videotape. He said that he would then decide whether to "accept the concerns" that the appellant's advocate had or accept the position advanced on behalf of the respondent.
8 An employee of the respondent, Mr Tomlinson, gave evidence at the hearing. He had supervised the editing of the surveillance material. He was extensively cross-examined about the editing process. He said that the footage that was omitted from the edited version was out of focus or obscured and that he had wanted to provide the doctors with a tape in which they could easily identify the appellant and in which she was performing normal activities.
9 The appellant also gave evidence at the hearing. She said that many of the activities undertaken by her and depicted on the footage were undertaken at a time when she felt able to undertake them. She also said that these activities were entirely different to the work that she had been required to perform on behalf of the respondent.
(Page 5)
10 In written closing submissions that were provided to the Review Officer by the appellant's representatives, the reliability of the footage was attacked. The editing process was described as "fundamentally flawed". This was said to be because the appellant did not know to what extent the tape had been edited in order to reduce any signs of physical restrictions. However, the submission was also made in the written submissions that, because the respondent had elected not to provide the unedited tape, it "becomes a question of the amount of weight that you can give the video surveillance tape and any medical reports which were subsequently based upon it … ".
11 At no time during the course of the evidence led at the hearing, or in the course of closing submissions, did the appellant or her representative renew the request for production of the unedited videotape.
12 In his reasons for decision, the Review Officer preferred the evidence of those doctors who considered that the appellant suffered from a work-related overuse injury. He found that the appellant was totally incapacitated for work from 11 March 2002 to 27 May 2002, but that she had been fit for restricted duties between September 2002 and October 2004. Notwithstanding this, because the respondent had not provided the appellant with any vocational rehabilitation assistance during that period, the Review Officer treated her as if she had been totally unfit for work until October 2004. He found that, by October 2004, she had recovered sufficiently to return to her pre-accident occupation.
13 In arriving at these conclusions, the Review Officer relied upon the evidence of doctors who had seen the video footage, some of whom had changed their opinions in the light of it. He also relied upon his own examination of that footage. He said, in this respect ([47] of his reasons):
"Whilst it would seem the medical practitioners were given an edited tape of the applicant's activities, the views they have expressed about [her] capacity have, in my opinion, been provided on the basis of their assessment of the applicant as depicted on the video as well as their own clinical observations. I have already noted many of the doctor's [sic] had expressed some concerns about the level of the applicant's symptomotology when compared to their clinical findings. The video, in my view, simply serves to confirm their previously-noted concerns."
(Page 6)
14 The appellant appealed to the Compensation Magistrates' Court against the Review Officer's determination. The appeal was dismissed. The appellant appeals against that decision. The sole ground of appeal in this Court reads as follows:
"1 The learned Compensation Magistrate erred, in not finding that the review officer had erred, by relying on the respondent's edited video surveillance tapes ('the tapes') of the appellant's activities, and, further relying on the opinion of [doctors] … which, at least partly, were based on the appellant's activities depicted in the tapes when by so doing, the learned review officer:
1.1 failed to act fairly within the meaning of, sub-section 84ZA [sic] of the Workers Compensation and Injury Management Act, 1981 (WA);
and
1.2 failed to accord natural justice to the appellant."
16 That submission cannot be sustained. The Review Officer did not refuse to order the production of the unedited videotape. His letter of 27 January 2005 did no more than decline to order production at that stage. He expressly reserved to the appellant the right to make a further application for production at the hearing. Moreover, when the hearing commenced, he suggested, sensibly in our respectful opinion, that the videotape should be played and that, once he had seen it, if the appellant then still had concerns in respect of the videotape, those concerns could be dealt with. As will be apparent, the appellant's representative chose not to make any further application in that regard. Instead, she said that she
(Page 7)
- would make submissions as to the reliability of the video surveillance material. As we have said, she subsequently did that. In all of the circumstances, there was no relevant unfairness or failure of natural justice.
17 We should add that, in the course of submissions on the appeal, counsel for the appellant suggested that, because the appellant was not represented by a lawyer at the hearing, she should not be bound by the conduct of her representative. We are not at all persuaded by that submission. The decision not to renew the application for production of the unedited material was a conscious one, informed by knowledge of the alternatives and by the explanation that had been given for the editing. Moreover, it seems to us to have been a reasonable decision. It enabled the appellant's representative to make the submission that, because it had been edited, the videotape material was less reliable than would otherwise have been the case for the purpose of establishing that the appellant was able, on an ongoing basis, to engage in activities of the kind depicted. Moreover, production of the unedited material could not detract from the fact that, at the time of filming, the appellant had been able to engage in the activities seen in the edited material. In all of these circumstances there is no reason why the appellant should not be held to the choice made by her representative on her behalf and in her presence. The fact that her representative was not legally qualified is, in our opinion, irrelevant.
18 It was for these reasons that we dismissed the appeal.
3
1