S Barry & R Keith v Goddard

[2000] NSWCA 49

CITATION:	S Barry & R Keith v Goddard [2000] NSWCA 49
FILE NUMBER(S):	CA 40345/99
HEARING DATE(S):	13/03/00
JUDGMENT DATE:	17 March 2000
PARTIES :	S. Barry and R. Keith (Appellant) Peter John Goddard (Opponent)
JUDGMENT OF:	Fitzgerald JA; Heydon JA

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	8002/98
LOWER COURT JUDICIAL OFFICER :	Dent DCJ

COUNSEL:	J.A. Hislop QC / G.A. Seib (Appellant) S. Norton /E. Welsh (Opponent)
SOLICITORS:	McCulloch & Buggy, Solicitors (Appellant) MacMahon Associates Solicitors (Opponent)
CATCHWORDS:	Application for leave to appeal - Workers Compensation Act - whether the injured worker could revoke his election not to claim common law damages - mistake as to the date of the election and as to the operation of an amendment to s 151A(3)(b) of the Workers Compensation Act
LEGISLATION CITED:	Workers Compensation Act 1987
DECISION:	Accordingly, the appropriate orders are ; 1. Application for leave to appeal granted; 2. Appeal allowed; 3. Set aside the orders made by the District Court on the worker’s notice of motion; 4. Remit the notice of motion to Dent DCJ for further hearing and determination according to law; 5. Costs of the application for leave to appeal and appeal to follow the event in the District Court.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40345/99
DC 8002/98

FITZGERALD JA
HEYDON JA

FRIDAY 17 MARCH, 2000

S BARRY & R KEITH -V- PETER JOHN GODDARD

JUDGMENT

1   THE COURT: The opponent (the “worker”) injured his spine on 10 December 1992 in the course of his employment by the claimants (the “employers”). A large disc herniation on the left side at L5/S1 was repaired by Dr Basil Ireland, who performed a lumbar-sacral laminectomy on the worker on 22 January 1993. 2   The worker subsequently returned to his employment by the employers and remained there until about May or June 1994, when he resigned and commenced other employment. In January 1995, he resigned from that employment and commenced employment with Bankstown City Locksmiths, where he continued to be employed until September 1997. 3   Meanwhile, on 18 December 1995, the worker commenced a proceeding in the Compensation Court against the employers, seeking compensation pursuant to s 66 and s67 of the Workers Compensation Act 1987 in respect of the injury which he suffered on 10 December 1992. That proceeding was the subject of a consent award by the Compensation Court, which was made on 6 February 1997 and formally entered on 1 April 1997. 4 Throughout the whole of the period of the proceedings in the Compensation Court in respect of the injury which he suffered on 10 December 1992, the worker was employed by Bankstown City Locksmiths. 5 The worker elected pursuant to s 151A of the Workers Compensation Act not to receive common law damages in respect of the injury which he suffered on 10 December 1992. His election was constituted by his acceptance of payment of permanent loss compensation pursuant to the consent award made by the Compensation Court on 6 February 1997. A cheque for compensation in accordance with the consent award was paid to the worker on 3 March 1997 and credited to his bank account on 11 March 1997. In this Court, the later date was accepted by both parties as the date of the worker’s election not to receive common law damages. 6 Between 18 December 1995, when the worker commenced his proceeding in the Compensation Court in respect of the injury which he suffered on 10 December 1992, and 6 February 1997, when a consent award was made in that proceeding, the worker obtained reports from Dr Ireland on 23 January and 29 October 1996, reports from Dr Conrad on 4 March and 19 April 1996, and a report from Dr Evans on 23 July 1996. 7 Shortly before the consent award was made on 6 February 1997, the worker suffered a significant increase in pain in his right leg. He reported that pain on 18 January 1997, and consulted Dr Kwong on 3 February 1997. 8 Almost immediately after the consent order was made on 6 February 1997, the worker noticed a significant increase in his right leg pain on 6 and 7 February 1997. He then went on holidays. On 18 February 1997, a CT scan was conducted of his lumbar spine. On 19 February 1997, he consulted Dr Pooviah, who referred him that day to Dr Giblin. Dr Giblin diagnosed a suspected recent rupture of the disc on the right side at L5/S1. 9 On 24 February 1997, the worker gave a notice of injury to his then employer, Bankstown City Locksmiths. He also made a claim for further compensation in respect of his injury on 10 December 1992 upon the employers’ workers compensation insurer. 10 The worker again consulted Dr Giblin on 12 March 1997, and on 20 March 1997, Dr Giblin performed a right-sided lumbo-sacral laminectomy on the worker. 11 On 5 August 1997, the worker commenced another Compensation Court proceeding against the employers, claiming further compensation in respect of the injury suffered by him on 10 December 1992, together with medical expenses related to the lumbo-sacral laminectomy performed by Dr Giblin on 20 March 1997. 12 After that second Compensation Court proceeding against the employers had been listed for hearing in July 1998, the worker applied to the District Court for leave pursuant to s151A(4) of the Workers Compensation Act to revoke his election not to receive common law damages for the injury which he suffered on 10 December 1992 and leave pursuant to s 151D of that Act to commence common law proceedings in respect of that injury. 13   The District Court made the orders sought by the worker, and the employers applied for leave to appeal to this Court from the District Court orders. 14   The District Court’s power to grant the worker leave to revoke his election not to claim common law damages required that it be satisfied that, after the election was made, the injury which he suffered on 10 December 1992 caused a further material deterioration in his medical condition which, had it existed at the time of the election, would have entitled him to additional permanent loss compensation. Workers Compensation Act s 151A(5)(b 15 The District Court also had to be satisfied that, at the time of the worker’s election, there was no reasonable cause to believe that the further deterioration would occur. Workers Compensation Act s 151A(5)(c) 16 In Francis v Dunlop, NSWCA 46380/97, unreported, 16 December 1998. a majority of the Court held that the latter requirement is only satisfied by a negative answer to the following question:

“Would a reasonable person with the information available to the [worker] when he elected to receive permanent loss compensation on [11 March 1997] have then had any cause to believe that his injury in respect of which such compensation was accepted would cause a further material deterioration in his medical condition that, had it existed at the time of the election, would have entitled the [worker] to additional permanent loss compensation?”

It was pointed out that the material belief is not a belief as to what might occur, but a belief as to what would occur.

17 In the District Court, the parties and the judge erroneously proceeded on the basis of an amendment to s 151A(3)(b) of the Workers Compensation Act which it is now accepted was not applicable. As a result of the mistake, the District Court treated the date of the worker’s election not to receive common law damages as 6 February 1997 intead of 11 March 1997. In consequence, the questions whether there was subsequently a further material deterioration in the worker’s medical condition which would have entitled him to additional permanent loss compensation and whether there was no reasonable cause to believe that the further deterioration would occur were wrongly considered by reference to the position at 6 February, not 11 March, 1997. Those issues have accordingly not been properly considered. 18 Although the worker initially submitted that leave to appeal should nonetheless be refused, both parties adopted a pragmatic approach in the course of argument. It was ultimately accepted that, if a direction could be obtained from the Chief Justice under s 46A of the Supreme Court Act 1970, the most satisfactory course would be to grant leave and allow the appeal so that the matter could be properly determined in the District Court. However, the parties disagreed about what other orders should be made in those circumstances. 19 A direction was subsequently given by the Chief Justice pursuant to s 46A of the Supreme Court Act. Conformably with the parties’ positions, the application for leave to appeal should be granted and the appeal allowed. 20   The first question which remains for resolution is whether the matter should simply be remitted to the District Court for a fresh hearing or whether it should be remitted to the judge by whom it was previously determined for further consideration. 21   There is no reason why the same judge cannot determine the matter. Indeed, one possibility considered by the parties was an application to that judge to vacate his orders by reason of the legal error which had occurred and to redetermine the matter according to law. That course was not proceeded with because of a concern that his Honour might lack the power to vacate his orders. However, his Honour is familiar with the matter, and nothing which has been said or done gives any basis for concern that the matter might not be reconsidered as at the correct date with an entirely open mind. 22   The other question remaining for decision relates to costs. Since the error which was made below was contributed to by both parties, costs of the proceedings in this Court should follow the event in the District Court. 23   Accordingly, the appropriate orders are :

1. Application for leave to appeal granted,

2. Appeal allowed,

3. Set aside the orders made by the District Court on the worker’s notice of motion,

4. Remit the notice of motion to Dent DCJ for further hearing and determination according to law,

5. Costs of the application for leave to appeal and appeal to follow the event in the District Court.