Morgan v Wanneroo Smash Repairs Pty Ltd
[2003] WASCA 41
•14 MARCH 2003
MORGAN -v- WANNEROO SMASH REPAIRS PTY LTD [2003] WASCA 41
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 41 | |
| Case No: | FUL:119/2002 | 15 JANUARY 2003 | |
| Coram: | BARKER J | 14/03/03 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Application allowed | ||
| B | |||
| PDF Version |
| Parties: | JOHN LEONARD MORGAN WANNEROO SMASH REPAIRS PTY LTD |
Catchwords: | Practice and procedure Whether extension of time for entry of appeal for hearing should be granted Whether merits of appeal preclude extension |
Legislation: | Rules of the Supreme Court, O 63 r 4, O 63 r 7(1) Workers' Compensation and Rehabilitation Act 1981, s 93D |
Case References: | Jackamarra v Krakouer (1998) 195 CLR 516 Kwa v City of Stirling, unreported; SCt of WA; Library No 990169; 16 March 1999 Reynolds v Roche Bros Pty Ltd [1999] WASCA 141 Thomas v O'Shea (1989) A Tort Rep 80-251 Waddington v Silver Chain Nursing Association (1998) 20 WAR 269 Wade v Allsopp (1976) 10 ALR 353 Linsell v Robson [1976] 1 NSWLR 249 Ta v Lucky Import and Export Co Pty Ltd [2002] WASCA 65 Wilson v Peisley (1975) 7 ALR 571 Wright v Shire of Albany (1993) A Tort Rep 81-239 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Appellant
AND
WANNEROO SMASH REPAIRS PTY LTD
Respondent
Catchwords:
Practice and procedure - Whether extension of time for entry of appeal for hearing should be granted - Whether merits of appeal preclude extension
Legislation:
Rules of the Supreme Court, O 63 r 4, O 63 r 7(1)
Workers' Compensation and Rehabilitation Act 1981, s 93D
Result:
Application allowed
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Category: B
Representation:
Counsel:
Appellant : Mr B L Nugawela
Respondent : Mr M P Bruce
Solicitors:
Appellant : Leonard Cohen & Co
Respondent : Phillips Fox
Case(s) referred to in judgment(s):
Jackamarra v Krakouer (1998) 195 CLR 516
Kwa v City of Stirling, unreported; SCt of WA; Library No 990169; 16 March 1999
Reynolds v Roche Bros Pty Ltd [1999] WASCA 141
Thomas v O'Shea (1989) A Tort Rep 80-251
Waddington v Silver Chain Nursing Association (1998) 20 WAR 269
Wade v Allsopp (1976) 10 ALR 353
Case(s) also cited:
Linsell v Robson [1976] 1 NSWLR 249
Ta v Lucky Import and Export Co Pty Ltd [2002] WASCA 65
Wilson v Peisley (1975) 7 ALR 571
Wright v Shire of Albany (1993) A Tort Rep 81-239
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1 BARKER J: By application made by notice of motion filed on 28 November 2002, the appellant seeks leave to file the entry of appeal in this appeal out of time. The respondent opposes the application.
2 Order 63 r 4 of the Rules of the Supreme Court provides that "A notice of motion by way of appeal must be served and a copy thereof filed within 21 days from the date of the judgment". Order 63 r 7(1) provides that, "Unless the Full Court or a Judge otherwise orders, an appeal must be entered for hearing before the expiration of 12 weeks from the institution of the appeal". Order 63 r 7(1) empowers a single Judge to exercise discretion in extending the time for entering the appeal for hearing.
3 The notice of appeal was served in compliance with the Rules. However, the appeal was not entered for hearing before the expiration of 12 weeks from the institution of the appeal. The circumstances in which this came about are fully explained in the affidavit of Mr Vertannes, the solicitor with the conduct of the matter on behalf of the appellant, filed in support of the application. In short, the appeal books, through no fault of the appellant's solicitors, were not ready and available for filing to permit compliance with the specified time limit.
4 In opposing the application, the respondent does not say that the appellant has failed to explain and justify the cause of the delay in entering the appeal for hearing in accordance with the rules, but, rather, says that the appeal has insufficient prospect of success to justify the extension sought. In doing so, the respondent relies on the principle established in Jackamarra v Krakouer (1998) 195 CLR 516 to the effect that, once an appeal has been lodged, the merits are not a relevant consideration in an application for an extension of time for taking a step in prosecuting the appeal, unless the Court can be satisfied that the appeal is so devoid of merit that it would be futile to extend time.
5 In Jackamarra at 521, Brennan CJ and McHugh J stated:
"But the merits of the appeal are not a relevant consideration where the application concerns an extension of time for taking a step in prosecuting the appeal unless, unusually, the court can be satisfied that the appeal is so devoid of merit that it would be futile to extend time. The merits are examined at the end of the process, not during its course. It would lead to strange consequences if consideration of the merits was a prerequisite for extending the time for each and every step in the conduct of
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- the appeal, just as it would lead to strange consequences if consideration of the merits was a factor to be determined in considering extensions of time for every step in ordinary actions [footnote omitted]."
6 Brennan CJ and McHugh J, at 521 - 522, noted that one reason that an appellate court does not go into much detail on the merits in considering whether the time for an appeal should be extended is because ordinarily it only has limited materials and argument. Their Honours observed that:
"Unless motions to extend time for appeals are to turn into full rehearsals for those appeals, appellate courts can only assess 'the merits' in a fairly rough and ready way. In most cases, that assessment will be made from the statement of the applicant's case rather than from the opposing arguments or any detailed examination of the proofs of the argument. The merits are merely one of the factors that must be considered in determining whether the discretion to extend time should be exercised …
It is one thing to conclude that counsel's statement of the appeal argument contains the ground for its rejection. It is another matter altogether to hold that, although the logic of the argument is impeccable, the appeal has no merits because the applicant has not taken the court to the detail of the evidence, the statues or the case law. Given the practice in hearing applications for extension of time, the rules of procedural fairness require that an appellate court should not determine the application on the details of the evidence (if they have been provided) or the lack thereof unless counsel has been given fair notice that the court intends to take that course."
- Kirby J at 544 - 545 made a similar observation.
7 In this particular instance, the application came on for hearing before Pullin J in chambers on 5 December 2002. The question of the merits of the appeal was then mentioned on behalf of the respondent. The matter came on again before Pullin J on 13 December 2002, when the Jackamarra point - that the appeal is "devoid of merit" - was squarely raised by the respondent. His Honour then made directions requiring the respondent to file and serve supplementary submissions referring to pages of the appeal book which are to be relied on in the hearing of the application, seven days before the hearing of the application. The matter
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- then came on for hearing before me on 15 January 2003. Thus, in some respects at least, the application has proceeded on the basis that the appellant was on notice that a close or closer consideration of the merits of the case would be required.
8 For my part, with respect, there is much sense in the observation in the joint judgment of Brennan CJ and McHugh J in Jackamarra that, unless motions to extend time for appeals are to turn into full rehearsals for those appeals, such applications can only assess the merits in a fairly rough and ready way. This particular application, and the opposition to it, merely go to demonstrate the point. For reasons which I have adverted to in a little more detail below, points raised by the respondent by reference to the decision below and the grounds of appeal invite a close consideration of the foreshadowed appeal and the issues which must be considered by the Full Court if the appeal is to go forward. It seems to me to be an unnecessary exhaustion of judicial time for more than a "rough and ready" assessment of the merits to be made unless the appeal is "so devoid of merit that it would be futile to extend time". I say this even though, to some extent, as indicated, the appellant has been invited to respond on the "merits" in some detail.
9 As to the merits of the appeal, the learned trial Judge in the court below found that injury suffered by the appellant (plaintiff) in an accident at his workplace on 18 March 1998 occurred as a result of the negligence of the respondent (defendant). In issue in the case, as in like cases, was whether, following a finding of negligence, the plaintiff was able to establish a future pecuniary loss in excess of $130,609 (as from 1 July 2002) pursuant to s 93D of the Workers' Compensation and Rehabilitation Act 1981, it being considered by her Honour to be the threshold level permitting recovery of damages in this State under that Act. In the event, having assessed the damages under various heads, the trial Judge found that the future pecuniary loss to the plaintiff should be assessed in a sum of $35,673. Thus, the plaintiff's claim was dismissed.
10 The appellant on the proposed appeal wishes to contend that the trial Judge incorrectly stated that the threshold amount was $130,609 when she should have found that the threshold amount was $109,605 (ground E of the notice of appeal).
11 Whether or not this ground succeeds, the appellant also wishes to complain that, in assessing the future pecuniary loss of the plaintiff, the trial Judge instead of awarding an amount of $29,975 for future loss of earning capacity, should have assessed that loss in an amount of $86,328
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- and, in addition to that amount, a further sum for "the reduction in the parameters of employment open and available to him, the chance of future unemployment, difficulties of obtaining employment as an injured person on the open labour market and the fact that his prospects of obtaining employment as a static security guard were limited": this issue is said to be raised by ground A, particulars (xii), (vi) and (ix) of the notice of appeal.
12 The appellant also wishes to contend that the trial Judge erred in awarding an amount of $2698 for future loss of superannuation benefits when she should have assessed that sum at $7931.38, together with an additional amount for "loss of parameters" in accordance with ground A(xii): see ground B particular (iii) of the notice of appeal.
13 In argument, counsel for the appellant said that the "loss of parameters" argument was put forward in reliance on the decision of the High Court in Wade v Allsopp (1976) 10 ALR 353. Counsel contended that, if the approach to assessment of damages in Wade v Allsopp had been adopted by the learned trial Judge, damages would have been increased by an amount of between $50,000 to $120,000. I will return to that decision and argument shortly.
14 The appellant also specifically complains that the learned trial Judge incorrectly assessed damages for future loss of earning capacity on the basis that it was a certainty that employment as a static security guard would have been open and available to the appellant to age 60 regardless of his injury, whereas the evidence merely established that there was a chance that he could succeed in obtaining such employment in the future if successfully trained: ground A particular (vi).
15 If the appellant's grounds of appeal were to succeed and these various steps established, future economic loss and loss of superannuation entitlements would total $94,259.38 ($86,328 plus $7931.38); and if a higher assessment for "loss of parameters" were allowed, the appellant's award would exceed the contended for prescribed amount of $109,650 (or, for that matter, the threshold amount applied by the trial Judge of $130,609).
16 The appellant had been employed as a spray-painter at the time of the accident. The trial Judge accepted that the appellant would have worked in his pre-accident employment duties to the age of 60 years (reasons par [87]). Her Honour also found that, despite the injuries he had suffered, the plaintiff had a retained earning capacity to work in a variety
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- of occupations, including as a "static security guard", on a full-time basis (reasons par [110]). Her Honour assessed damages for future economic loss on the basis of a $50 net loss per week compared with the appellant's pre-accident earnings until age 60. When a multiplier of 599.5 was applied in assessing the damages (reasons par [110]) the assessed figure of $29,975 was arrived at.
17 The appellant's "future pecuniary loss" (as defined by s 93A of the Workers' Compensation and Rehabilitation Act)was ultimately calculated at $35,673 (reasons par [113]) in the following manner:
Future gratuitous services $1000
Future medical expenses $2000
Future economic loss $29,975
Future loss of superannuation $2698
Total: $35,673
18 The question of the continuing capacity of the appellant to work as a static security guard requires one to consider precisely what her Honour the trial Judge said and found in this respect. In my view, it is tolerably clear that her Honour considered the appellant was able to do that type of work (notwithstanding the assertions to the contrary made by counsel for the appellant on the hearing of the application before me).
19 In supplementary written submissions filed 28 January 2003 on behalf of the appellant, it is contended on behalf of the appellant that the trial Judge misapplied Thomas v O'Shea (1989) A Tort Rep 80-251 in finding that there was sufficient evidence to conclude (and in so concluding) that the appellant was a suitable candidate to work as a security officer. It is said that the evidence of Mr Caffery (called by the respondent at trial) was that a person with aggressive or violent tendencies would not be a suitable person for such a position. It is also said on behalf of the appellant that there was no evidence whatsoever that the appellant would be likely to have obtained a police clearance for such a position: and reference is made to the transcript 514C - 515D, referred to in the affidavit of Lian Hall filed on behalf of the respondent in opposition to the application.
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20 While it may be contended that the learned trial Judge made findings of fact concerning the appellant's capacity and temperament for work as a static security guard, the appellant disputes this and contends that the trial Judge only made findings on the issue of "impulse control" and says that the trial Judge should not have limited the broader question of suitability for the work identified as limited to impulse control. In broad terms, counsel suggested that the learned trial Judge did not address the question whether, having regard to all the evidence, the appellant is a person who is not well suited to the job identified. In this regard, counsel relied on Waddington v Silver Chain Nursing Association (1998) 20 WAR 269. Counsel contended that the learned trial Judge failed to make a common sense determination whether this appellant would be suited to the job of a static security officer, given the nature of his injuries, work experience and temperament.
21 It is also said on behalf of the appellant that the trial Judge wrongly elevated the evidence of Mr Caffery as having security industry-wide relevance, when it was clear that Mr Caffery was only giving evidence as to the particular operations of a security company called Chubb. It is said there was no evidence in relation to the employment opportunities available within Chubb in any event: the transcript at 423A - B, 425B, 430A - B referred to in the affidavit of Mr Hall is said to support this submission.
22 These types of factual allegations require a more thoroughgoing analysis than is appropriate on an application of this nature. Having considered the materials the appellant wishes to rely upon and the submissions made in respect of them, I do not consider I can rule that the appeal "is so devoid of merit" that the application should be refused. For me to make any appropriate determination of such a ground of appeal would, in effect, require a full-scale rehearsal of the appeal, which I do not consider appropriate in relation to this issue. There would appear to be some basis for contesting the finding of the trial Judge that the appellant is capable of working as a static security guard, although the likelihood of the challenge being successful might be considered slim.
23 Similarly, as to what the difference in earning capacity would be if the appellant were to be employed as a static security guard compared with his pre-accident employment level, would also appear to be subject to an arguable contrary view to that concluded by the trial Judge.
24 The respondent says that the appellant, in putting forward its argument, that future economic loss should have been calculated at
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- $86,328, wrongly ignores the trial Judge's conclusion that a gross retained earning capacity of $439.60, pursuant to the Security Officers' (Western Australia) Interim Award 1996, did not factor in penalties for shift work (reasons pars [82] and [83]). The respondent says that the trial Judge accepted the evidence of Mr Caffery that penalties for shift work can range in increments from 15 per cent up to 150 per cent (reasons par [82]).
25 While on one view the learned trial Judge may be said to have calculated a weekly loss of $50 on the basis that such a calculation was most advantageous to the appellant in the circumstances, counsel for the appellant says it is in fact the least advantageous way to assess the weekly loss. This is said on the basis that the learned trial Judge should not have made any discount in respect of what the plaintiff would have earned by way of penalty rates in the security industry, given the state of the evidence. The appellant argues that the trial Judge should not have made any allowance on account of the likelihood of additional income being earned as a static security guard on the basis of overtime penalty rates being applicable. In other words, it is contended that the trial Judge should have calculated the relevant loss on the basis of a shortfall of income following the accident of $144 per week. This, in the appellant's submission, would produce a sum of $86,328, not the $29,9575 calculated by her Honour.
26 I am not at all sure that the appellant's ground of appeal involving these issues will succeed, but it is difficult to say at this point that the ground involving them is so devoid of merit that the appeal should not be permitted to go forward. Unlike Kwa v City of Stirling, unreported; SCt of WA; Library No 990169; 16 March 1999 per Malcolm CJ (with whom the other members of the Full Court agreed), I am unable to conclude there is simply "no prospect of success" on this ground involving these issues.
27 As to the "loss of parameters" head of damage, upon which so much of the appellant's case on appeal would depend, the appellant places reliance on Wade v Allsopp (supra). The respondent denies the relevance of that decision in the circumstances of the appellant.
28 In Wade v Allsopp, as the headnote reveals, an intelligent and active 17-year-old schoolboy 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 a deep-seated behavioural problem associated with the brain injury. His intelligence was impaired,
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- he was euphoric, his behaviour was eccentric and despite rehabilitative training he had been unable to obtain employment. In an action for damages for personal injuries, the plaintiff led evidence as to the earning capacity of his elder brother who was a public servant and less talented than the plaintiff. The trial Judge awarded the plaintiff just under $74,000, of which $45,000 for economic loss, $20,000 for general damages and approximately $9000 for out-of-pocket expenses.
29 The Court of Appeal in New South Wales increased the verdict to $100,000 because it was based on an unjustified assumption that the plaintiff's economic prospects would have been no more favourable than those of his brother and it regarded $20,000 as an inadequate award of general damages because of the disproportion of the sum to the devastating effect of the plaintiff's injuries on his whole life.
30 In the High Court the appeal was dismissed. Stephen J (with whom Gibbs, Jacobs and Murphy JJ agreed) considered that the approach taken by the trial Judge was "erroneous", although induced, in part at least, by the nature of some of the evidence led on the plaintiff's behalf. The defendant called no evidence at the trial. On behalf of the plaintiff much evidence was led concerning the character and intelligence of the plaintiff before the accident, all of which pointed to the likelihood that he would complete satisfactorily his higher school certificate examination, become university educated and take his place in one or other of the professions.
31 Stephen J observed, at 359:
"It was, in these circumstances, for the trial Judge to assess as best he could the prospects of the plaintiff had he not been injured. Years of study and close application to his work lay before the plaintiff if he were to gain qualifications through tertiary education, but he not only possessed superior intelligence but also a 'strong and positive personality' and a rugged constitution combined with ambition …
The learned trial Judge did not, I think, value, and reflect in his award of damages, this lost chance of obtaining the financial rewards which might follow the completion of tertiary education; he rather treated the plaintiff as following much the same path as that of his elder brother and of another young man … His Honour appears to have adopted their earning capacities and future prospects as representative of those which would have been the lot of the plaintiff but for his injuries …"
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32 The respondent submits that Wade v Allsopp is not authority for the making of a general allowance for loss of parameters of employment as contended for by the appellant. The respondent says that the High Court merely rejected the trial Judge's reasoning that the plaintiff would have had a career similar to that of his brother, when there was evidence that the plaintiff had greater intellectual ability than his brother and better employment prospects. The respondent says that such a case is quite different from that of the appellant here, and lends itself to an assessment "as best can be made" of the prospects of a plaintiff but for an injury.
33 The respondent says that, in this case, the trial Judge has made a specific finding of fact in relation to the sorts of occupations which the plaintiff has a full-time capacity to perform. This does not attract the Wade v Allsopp approach. Counsel for the respondent accepts that there are cases where an assessment of future economic loss "as best can be made" needs to be made, but this is not one of them, especially in light of the trial Judge's findings concerning the appellant's retained capacity for work.
34 The appellant, in the further written submissions of counsel, says that an application of the Wade v Allsopp principle may be seen in Reynolds v Roche Bros Pty Ltd [1999] WASCA 141 at [6] per Ipp J. This decision involved, amongst other issues, the decision of the trial Judge to deduct a discount of 20 per cent for contingencies in arriving at the awards for future economic loss and future superannuation. His Honour expressed the opinion that the discount was too high. He then identified two factors which arguably warranted a discount rate higher than usual. His Honour then noted that, apart from those two factors, there was nothing in the appellant's employment or physical condition that made the appellant's situation in any way extraordinary or unusual. His Honour added:
"There were, moreover, matters that tend to counterbalance the appellant's pre-existing condition, and the uncertainty as to his prospective income after the age of 55 years. These stem from the learned Judge's assumption that the appellant would obtain work on the very date that judgment was delivered and, utilising his retained earning capacity, would be employed every day of his working life until the age of 65 years. There are a number of difficulties with this reasoning. Firstly, by the time judgment was delivered the appellant had been out of work for about three years. He had attempted to retrain for other employment and attempted to obtain work, but these attempts were not particularly successful. It is plain that account has to be taken
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- for some period after the date of judgment within which the appellant would undergo further retraining and look for work, and during which he would have no earning capacity. Further allowance has to be made for the fact that with his spinal problems the appellant might have difficulties in obtaining work. Thirdly, allowance has to be made for the contingency that the appellant may well not be able to work every day of his working life until the age of 65 years. This contingency is exacerbated by the spinal injuries suffered in the accident."
35 Whether or not Reynolds v RocheBros Pty Ltd is an example of the approach taken in Wade v Allsopp is, perhaps, open to serious doubt. Wade v Allsopp was cited to the Full Court in Reynolds' case, although not referred to in the reasons for decision of Wallwork J (with whom Pidgeon and Ipp JJ agreed) nor referred to in the additional observations of Ipp J in his reasons.
36 The learned trial Judge in the instant case appears to have made particular findings about the efforts that the appellant had made in respect of obtaining alternative employment and it may be observed that these findings are relevant to the question whether a more generous allowance should be, or have been, provided on account of the appellant's physical condition, age and likelihood to obtain work in the area identified by her Honour. Counsel for the appellant says that the learned trial Judge did not deal with the issue at all, and erred in failing to address her mind to and make an allowance for the "Wade v Allsopp component". Counsel for the appellant contends that, while the appellant might have a retained earning capacity for work, the issue remained where he would find that work and that her Honour was obliged to consider this issue. The "premium" by way of damages that the appellant says he is entitled to in this regard is identified specifically in particular (xi) of ground of appeal A.
37 For my part, I consider that the so-called "parameters" argument is difficult to apply to the facts of this particular case. Whether the trial Judge had an obligation, which she failed to satisfy, to assess the loss of the appellant by way of future economic loss in a more generous, "as best can be" manner, is something I seriously doubt in this case.
38 I should note in passing that there is also some dispute between the parties as to what her Honour the learned trial Judge meant when she ultimately concluded in her reasons, at par [89] that:
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- "In the light of all the evidence, including the medical evidence, I totally reject the plaintiff's contention that he is too stressed to carry out 40 hours work of a lighter nature per week."
- The respondent says that her Honour was not there simply talking about security guard work, but a variety of work of a "lighter nature". While the respondent may be correct, it does appear that her Honour, in assessing future economic loss, focused purely on evidence concerning the position of a static security guard employed by Chubb.
39 In the event, the respondent submits that, for the plaintiff to succeed in the appeal, he would have to set aside the trial Judge's finding that the plaintiff was fit to work from 18 March 2000 as a static security guard; and that that is an insurmountable hurdle. In my view, it is certainly a major hurdle. However, the question remains whether the ground of appeal in relation to it put forward on behalf of the appellant is "so devoid of merit" that the appeal should not be allowed to go forward.
40 I am of the view that the appellant's grounds of appeal concerning the process of fact-finding of the trial Judge as to the capacity of the appellant to work as at the date of judgment and prior thereto, as well as into the future, and the principles that the appellant says should have governed the trial Judge's assessment of the appellant's future economic loss, are not "so devoid of merit" that the application for extension of time to enter the appeal for hearing should be refused. I would therefore make the orders sought on the appellant's application.
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