Nader v Millwood Holdings Pty Ltd

[2014] WADC 33

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   NADER -v- MILLWOOD HOLDINGS PTY LTD [2014] WADC 33

CORAM:   DEPUTY REGISTRAR HEWITT

HEARD:   17 MARCH 2014

DELIVERED          :   25 MARCH 2014

FILE NO/S:   CIV 3070 of 2010

BETWEEN:   ALI NADER

Plaintiff

AND

MILLWOOD HOLDINGS PTY LTD
Defendant

Catchwords:

Practice and procedure - Application to remove case from inactive list - Consideration of the Workers' Compensation and Rehabilitation Act 1981 - Delay only partly explained - Prospect of favourable determination under the Act unlikely

Legislation:

Workers' Compensation and Rehabilitation Act 1981

Result:

Application dismissed

Representation:

Counsel:

Plaintiff:     Ms C Holyoak-Roberts

Defendant:     Ms R Aria-Retnam

Solicitors:

Plaintiff:     Leonard Cohen Legal

Defendant:     Jarman McKenna

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

Nil

1. DEPUTY REGISTRAR HEWITT:  This action is currently on the inactive cases list, having been placed on that list on 23 April 2013 on the basis that no document had been filed in the case for the preceding 12 months.  The application before the court is that of the plaintiff to remove the matter from the inactive cases list.  As a starting point I shall review the progress of the action to date.

2. The action commenced by a writ filed on 8 October 2010.  The endorsement of claim is in the following terms.  The plaintiff's claim is against the defendant for payment of damages and losses for personal injuries arising out of an injury suffered by the plaintiff in the course of his employment on 11 April 2005, the injury having occurred at the defendant's premises at Froomes Road, Pemberton in the state of Western Australia.  To my mind it is notable that the endorsement of claim gives no hint as to the nature of the action which is intended to be pursued by the plaintiff.  It could be for instance negligence, occupier's liability or a number of other possibilities.  In any event the writ was not served and no document was filed in the case for 12 months and the matter went inactive on 8 October 2011.  That prompted the plaintiff to bring an application filed 9 December 2011 seeking to extend the validity of the writ to 30 June 2012.  On the hearing of that application there must have been an oral application to remove the matter from the inactive list and orders in those terms were made as well as an order extending the validity of the writ to 27 April 2012.

3. Once again no document was filed in the case for 12 months and the matter went inactive on 26 April 2013.  The present application was filed on 23 October 2013 once again seeking to remove the matter from the inactive list.

4. Although not apparent from the endorsement on the writ, it appears that the proposed action intended to be pursued by the plaintiff arises out of an employment contract between the plaintiff and the defendant, the allegation being that on the date referred to in the writ the plaintiff suffered an injury presumably due to the neglect in some particular of the defendant as the plaintiff's employer.  At the relevant time there were constraints on the award of common law damages in actions brought by employees against employers and those were set out in the Workers' Compensation and Rehabilitation Act1981 in s 93A and following.  The section was amended to that form by an amendment introduced by Amendment Act 44 of 2000.  The gist of the legislation as it then stood provides that damages in an action against an employer for personal injury could only be awarded if the degree of disability was determined, according to the method set out within the act, to be not less than 30% or determined to be between 15% and 30% and the worker had elected in the prescribed manner to retain the right to seek damages and the election was registered in accordance with the regulations.

5. The capacity of an injured worker to elect to commence proceedings for an injury determined to be greater than 15% but less than 30% depended upon him registering his election to so proceed.  That registration is required to be in place six months after the date upon weekly payments commenced. 

6. In the present case it is not completely clear when worker's compensation payments commenced, but it is obvious that the plaintiff remained on worker's compensation payments until the defendant applied successfully for their cessation in March 2008.  It follows therefore that the plaintiff could not possibly register an election to commence proceedings in the event that his degree of disability was found to be less than 30%.  I now turn to the reasons advanced by the plaintiff to explain his tardiness in progressing the present action.

7. In essence the explanation which is given relates to the difficulties in obtaining information to support a determination of the level of impairment necessary to open the door to the plaintiff to obtain a damages award in his favour.  Essentially the difficulties arise because the plaintiff resides in Victoria, is impecunious, and there have been difficulties obtaining funding to obtain the necessary report and difficulties obtaining reports which adequately address the criteria set out in our Act.  I accept that those problems were real and impacted on the plaintiff's ability to prosecute this action although in making that remark, I note that the existence of a determination is not a pre‑requisite for an action but must be in place before any award of damages can be made.

8. Nonetheless I would not be critical if the plaintiff chose not to proceed with an action until a necessary determination was within reach.  There have however been other delays which in my view are not excusable and the present application has not been proceeded with expeditiously.  I am also critical of the fact that in the absence of agreement from the defendants (which has not been forthcoming), it is necessary to make application to WorkCover for an assessment and determination.  At the date of hearing no such application had been made although I was told from the bar table one is contemplated and would be lodged shortly.

9. Following from that position, I think it appropriate to consider whether on the materials which have been placed before me, the plaintiff has a reasonable prospect of obtaining the determination which would be required to open the way for an award of damages in his favour should the court find an award to be appropriate.  The complicating factor appears to be that the plaintiff suffered a significant injury prior to that pursued in this litigation.  Notably in the plaintiff's solicitor's letter to Mr Craig Timm's neurosurgeon, seeking reports to support a determination of disability, no mention was made of that prior injury.  Although of less consequence, I also note that the date of the work accident in the solicitor's letter is incorrect, it being shown as 1 April 2005, when in truth it would appear to have been 11 April 2005.  Likewise in a letter to Dr Qasim Hamini, the doctor was not informed of the previous accident although on this occasion the date was correctly expressed.  Amongst the medical reports obtained by the plaintiff's solicitors is one from Dr Stephen Adams which contains an assessment according to the Worker's Compensation Act of his permanent sexual disability attributable to the accident of 25% loss of genitals.  Unhelpfully to the cause advanced by the plaintiff, Dr Adams in his report refers to events which occurred in 2002 not to the accident which is pursued by the plaintiff.  Dr Adams refers to the fact that the accident in 2002 related to a diagnosis of a possible prolapsed disc at L4/5.  Dealing as it does with the incorrect accident, Dr Adams's report will not be of any use to the plaintiff in his application for a determination.  Likewise, I find the report of Dr Ng unhelpful because it also does not discriminate between the earlier accident and that the subject of the present writ.  I finally look at the report of Mr Craig Timms of February 2012 in which he refers to the plaintiff injuring his back resulting in a disc injury with neural compression at the L4/5 which Mr Timms considers the cause of his problems.  It is clear from the context of the report that the doctor regards the primary cause of the plaintiff's symptoms to be the earlier injury and not that pursued by the plaintiff in the present action.  In that regard I refer to the report at page 3 where he says:

   Mr Nader has a disc injury at L4/5 causing low back pain and left leg sciatica, the history conveyed to me was that this lifting injury occurred in fact in the year 2000, I cannot comment regarding injury in 2005.

10. Again, on page 4 he says:

    My final conclusion regarding Mr Ali Nada is that he injured his back while working as a farm labourer and this has resulted in low back pain and left leg sciatica with weakness and centrally disturbance.  The MRI scan suggested a disc injury with neural compression at level L4/5 and I believe this is the most likely cause of his symptoms.

11. It is clear from the materials before me that Mr Nada had a significant spinal injury in the earlier accident and had CT scans of the lumbar spine revealing a disc injury at the level of L4/5 and an MRI taken at about that time.  Those findings were confirmed by an MRI of the lumbar spine on 22 June 2011.  That information appeared in Mr Timm's report at page 2.

12. The defendant has opposed the present application in part because a witness which it considers to be material can no longer be found and his whereabouts are not known.  In exactly what way this man is material to the defendant's case is difficult to say since the plaintiff's claim has not been pleaded and, as I have pointed out, the endorsement of claim is inscrutable.  It is said however that this man was a supervisor of the plaintiff and since the plaintiff's claim is likely to involve some allegation of want of supervision or inadequate work practice or something of the like, may well have been an important witness for the defence.

13. It is now 9 years since the date of the accident and if the plaintiff does apply for a determination, there is no certainty as to when that determination will be available.  Additionally, on my reading of the materials which are intended to be supportive of such an application, I find it highly unlikely that the determination will be in his favour.  In the event that a determination of less than 30% is obtained, it will not be possible for the plaintiff to make an election and become entitled to an award of damages were this action to be successfully concluded.  In the circumstances my view is that the delays in this action, extreme as they are, the potential prejudice to the defendant because of the delay, the fact that there will be further delays if this action is to continue, the fact that the prospect of the plaintiff obtaining a successful determination look remote, all in all conspire to my view that it would not be appropriate to remove this matter from the inactive list and it should be left to die a natural death according to the District Court Rules 2005.