Moyes v Ensco Australia Pty Ltd - [2022] WASCA 104

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   MOYES -v- ENSCO AUSTRALIA PTY LTD [2022] WASCA 104
CORAM:   BUSS P
MURPHY JA
VAUGHAN JA

HEARD:   23 MAY 2022
DELIVERED          :   9 AUGUST 2022
FILE NO/S:   CACV 86 of 2020
BETWEEN:   WILLIAM MOYES
Appellant
AND
ENSCO AUSTRALIA PTY LTD
First Respondent
GRN AUSTRALASIA PTY LTD
Second Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   PETRUSA DCJ
Citation: MOYES -v- ENSCO AUSTRALIA PTY LTD [2020] WADC 99
File Number            :   CIV 3813 of 2014

Catchwords:

Negligence - Personal injury - Fall at work - Where plaintiff alleged forceful fall causing nociplastic pain - Where medical evidence based on plaintiff's reports of symptoms and pain - Adverse credibility findings against plaintiff - Where judge found causation of nociplastic pain not established - Where no challenge to the finding of fact that causation had not been established - Whether trial judge nevertheless erred in law when there was 'no evidence' as to the degree of force required to cause nociplastic pain

Procedural fairness - Whether trial judge erred in law in denying procedural fairness to plaintiff on alleged basis that plaintiff had not been cross‑examined on relevant evidence - Rule in Browne v Dunn - Whether judge was bound to accept plaintiff's evidence - Where relevant matters were put to plaintiff and cross‑examined on - No denial of procedural fairness - No error of law

Legislation:

Nil

Result:

Appeal dismissed

Representation:

Counsel:

Appellant	:	B L Nugawela & R A Hinchliffe
First Respondent	:	D R Clyne
Second Respondent	:	D R Clyne

Solicitors:

Appellant	:	Soul Legal (Perth)
First Respondent	:	Moray & Agnew Lawyers
Second Respondent	:	Moray & Agnew Lawyers

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

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Browne v Dunn (1893) 6 R 67 (HL)
Burke v Corruption and Crime Commission [2012] WASCA 49; (2012) 289 ALR 150
Child and Adolescent Health Service v Mabior [2019] WASCA 151; (2019) 55 WAR 208
Clark v Flanagan [1934] HCA 73; (1934) 52 CLR 416
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Garling v Association to Resource Co-Operative Housing Co-Op Ltd [2001] NSWCA 377
Joyce v Anderson [2020] WASCA 48; (2020) 91 MVR 334
Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361
Lee v Lee [2019] HCA 28; (2019) 266 CLR 129
March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506
Marelic v Comcare (1993) 47 FCR 437
Moyes v ENSCO Australia Pty Ltd [2020] WADC 99
Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679
Thomas v Van Den Yssel (1976) 14 SASR 205
Waite v Alcoa of Australia Ltd [2020] WASCA 1

Table of contents

Introduction and overview

Mr Moyes' alleged injuries in the primary proceedings

The fall alleged by Mr Moyes

The…

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: [2022] WASCA 104
Decision Date

CaseChat Overview and Summary

The case of Moyes v Ensco Australia Pty Ltd involved an appeal by William Moyes against the orders of Petrusa DCJ dismissing his action in the District Court. Moyes claimed damages for injuries and loss resulting from a fall at work in January 2012, which he alleged was caused by the negligence of ENSCO Australia Pty Ltd. The primary judge found that Moyes had not established that the fall had caused the physical and psychiatric injuries he alleged, and dismissed his action. In this appeal, Moyes contended that the primary judge erred in law by finding, in the absence of any evidence, that the force with which he fell did not cause disturbance of the sensorial nerves and associated nociplastic pain, and by finding this when his evidence on the topic and on the topic of 'medical causation' was not challenged at trial or put to him in cross-examination. The Court of Appeal found that Moyes had not established any error of law as alleged, and dismissed the appeal. The appeal was dismissed because the findings of fact were substantially based on credibility, and the principles of appellate restraint applied. The judge's findings were consistent with the evidence presented at trial, and the medical evidence relied on by Moyes was based on his self-reporting of symptoms and capacities. The Court of Appeal found no error of law in the primary judge's reasoning and outcome.

Orders