Moyes v ENSCO Australia Pty Ltd - [2020] WADC 99

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   MOYES -v- ENSCO AUSTRALIA PTY LTD [2020] WADC 99
CORAM:   PETRUSA DCJ
HEARD:   16 OCTOBER - 3 NOVEMBER 2017, 9-27 APRIL, 5-8 JUNE, 3-7 DECEMBER 2018
DELIVERED          :   3 JULY 2020
FILE NO/S:   CIV 3813 of 2014
BETWEEN:   WILLIAM MOYES
Plaintiff
AND
ENSCO AUSTRALIA PTY LTD
First Defendant
GRN AUSTRALASIA PTY LTD
Second Defendant

Catchwords:

Personal injury - Fall at work - Liability denied - Causation of injury - Credibility - Turns on own facts

Legislation:

Civil Liability Act 2002 (WA)
Workers' Compensation and Injury Management Act 1981 (WA); s 93K(4)

Result:

The plaintiff's action is dismissed against each defendant

Representation:

Counsel:

Plaintiff	:	Mr D Campbell SC, Mr N Morrissey & Mr R Di Michiel
First Defendant	:	Mr D Clyne
Second Defendant	:	Mr D Clyne

Solicitors:

Plaintiff	:	Premier Compensation Lawyers
First Defendant	:	Kott Gunning
Second Defendant	:	Kott Gunning

Case(s) referred to in decision(s):

Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420
Department of Housing and Works v Smith [No 2] [2010] WASCA 25
Kerr v Minister for Health [2009] WASCA 32
Kuhl v Zurich Financial Services [2011] HCA 11; (2011) 243 CLR 361
Parlin Pty Ltd v Choiceone Pty Ltd [2012] WASCA 19
Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330
Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422
Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40

Index to Judgment

1. Introduction

2. Summary of Mr Moyes' case

3. Summary of ENSCO's case

4. The issues

(a) The issues

(b) Mr Moyes' credibility

5. Was there a fall?

(a) The evidence of Mr Moyes

(b) Other evidence concerning the fall

(c) Findings as to whether there was a fall

6. Duty of care

(a) Principles

(b) Was the fall the result of a breach of duty?

(i) The pleadings

(ii) The expert evidence

(iii) Submissions on the facts relating to duty of care

(c) Findings on breach of duty

7. The nature of the fall

8. What physical injury, if any, did Mr Moyes suffer as a result of the fall?

(a) Spinal injuries

(b) Dr Pratsis' opinion - fracture and prolapsed disc

(c) Dr Stock's opinion - no fracture; pre-existing prolapsed disc

(d) Dr McCormick's opinion - no fracture; pre-existing prolapsed disc

(e) Findings on physical injury

9. Bruising and swelling of the thoracic spine

(a) The evidence of bruising and swelling

(b) Findings on bruising and swelling

10. Mr Moyes' medical treatment

11. Neuropathic or nociplastic pain

(a) The source of any pain

(b) The use of oxycodone medications for pain

12. Factors relevant to nociplastic pain

(a) The early treatment of pain

(b) Psychosocial factors

(c) Mr Moyes' previous pain history

(d) The mechanism of Mr Moyes' injury

(e) Mr Moyes' reports of the character of his pain

(f) Clinical observations and formal examinations

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] WADC 99
Decision Date: 3 JULY 2020

CaseChat Overview and Summary

In the matter of Moyes v ENSCO Australia Pty Ltd, the respondent, ENSCO, sought to have the claims of the applicant, Mr Moyes, dismissed. Mr Moyes alleged that he suffered personal injury as a result of a fall while working for ENSCO. The matter was heard in the Supreme Court of Western Australia, where the court was required to determine the issues of liability and causation in relation to the fall.

The central legal issues were whether ENSCO was liable for the injuries sustained by Mr Moyes and, if so, whether the injuries were caused by the fall at work. The court had to assess the credibility of Mr Moyes’ evidence and determine whether it was sufficient to establish the causation of the injuries. Additionally, the court considered whether it was appropriate to provisionally assess any claimed loss and damage given the findings on liability.

The court found that the claim against ENSCO must be dismissed. The decision hinged on the court’s assessment of Mr Moyes’ credibility, which it did not accept. The court concluded that, given the lack of credible evidence, it would be inappropriate to provisionally assess any claimed loss and damage. This finding was influenced by the suggestion in Kerr v Minister for Health that provisional assessments are ordinarily desirable but must be balanced against the court's findings on liability and evidence.

The final orders of the court dismissed the claims against both ENSCO and GRN, reflecting the court's determination that the applicant's evidence was not credible enough to establish the required causation and liability.

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

Conclusion First, given the concession from counsel for Mr Moyes referred to above at [5], the claim against GRN must be dismissed. Secondly, the claim against ENSCO must also be dismissed for the reasons outlined above. Given that I do not, and cannot, accept the evidence of Mr Moyes, it would be inappropriate to now attempt to provisionally assess any claimed loss and damage should I be wrong on the issue of liability, notwithstanding that it would ordinarily be desirable to do so, as suggested by Buss JA in Kerr v Minister for Health.[423][423] Kerr v Minister for Health [2009] WASCA 32 [3].

Ratio Decidendi

Legal Principle Established

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