Smith v United Kg Engineering Services Pty Ltd

[2004] WADC 194

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   SMITH -v- UNITED KG ENGINEERING SERVICES PTY LTD [2004] WADC 194

CORAM:   MARTINO DCJ

HEARD:   20 SEPTEMBER 2004

DELIVERED          :   24 SEPTEMBER 2004

FILE NO/S:   CIVO 26 of 2004

BETWEEN:   STEPHEN JOHN SMITH

Plaintiff

AND

UNITED KG ENGINEERING SERVICES PTY LTD
Defendant

Catchwords:

Workers' compensation - Application for leave to bring proceedings under repealed legislation - Whether grant of leave open

Legislation:

Interpretation Act 1984 s 37

Workers' Compensation and Rehabilitation Act 1981 s 93D

Workers' Compensation and Rehabilitation Amendment Act 1999

Result:

Appeal dismissed

Representation:

Counsel:

Plaintiff:     Mr P S Bates

Defendant:     Mr D W Williams

Solicitors:

Plaintiff:     Paul O'Halloran & Associates

Defendant:     Mullins Handcock

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

Abbott v Minister for Lands (1895) AC 425

Dossett v TKJ Nominees Pty Ltd (2003) 202 ALR 428

Duca v Aherns Holdings Pty Ltd (2004) WADC 85

Hanna‑Pauley v David Jones Limited [2004] WADC 69

Henderson v KCut Pty Ltd & Anor (2004) WADC 13

Jabar‑Khail v Troon Holdings Pty Ltd (2004) WADC 108

Leary v Federal Commissioner of Taxation (1980) 28 ALR 123

Toolan v Metropolitan (Perth) Passenger Transport Trust (2001) 25 WAR 1

Case(s) also cited:

Esber v Commonwealth of Australia & Anor (1992) 174 CLR 430

Harding v Willman [1963] ALR 604

Jongen v CSR Ltd & Anor (1992) Aust Torts Reports 81­192

Lend Lease Employer Systems Limited v Lydon, unreported; FCt SCt of WA; Library No 980088; 27 February 1998

Mayne v Mayne Nickless t/as Wards Express, unreported; FCt SCt of WA; Library No 960223; 26 April 1996

New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act (1988) 14 NSWLR 685

Pollitt v Midland Brick Co (1995) 14 SR (WA) 251

Sampson v Industrial Progress Corporation Pty Ltd, unreported; FCt SCt of WA; Library No 970058; 21 February 1997

Sgro v New Cement Co Pty Ltd (1995) 15 SR (WA) 44

Theobald v St Johns Ambulance Australia, unreported; DCt of WA; Library No 4991; 24 July 1996

Thomas v O'Shea (1989) Aust Torts Report 80­251

Todorovic v Waller (1981) 150 CLR 402

Wade v Allsopp (1976) 10 ALR 353

Webster v Industrial Galvanisers Corporation Pty Ltd, unreported; DCt of WA; Library No 5137; 13 November 1996

1. MARTINO DCJ: The plaintiff claims that he was injured in the course of his employment by the defendant on or about 4 March 1998 and that his injury was caused by the failure of the defendant to satisfy the duty of care that it owed to him. The plaintiff did not apply for leave to commence an action for damages against the defendant under the former s 93D of the Workers' Compensation and Rehabilitation Act 1981 prior to 5 October 1999.  On that day the Workers' Compensation and Rehabilitation Amendment Act 1999 came into force. It repealed s 93D and substituted different conditions on the award of damages for personal injuries in an action by a worker against the worker's employer.

2. On 23 February 2004 the plaintiff applied for leave to commence an action against the defendant under the now repealed s 93D. As the expiration of the limitation period was imminent the application was listed on an expedited basis. On 3 March 2004 Deputy Registrar Harman gave leave to the plaintiff to commence an action.

3. The defendant appeals against Deputy Registrar Harman's decision.  The appeal is a new hearing of the application for leave.

4. The plaintiff contends that following Dossett v TKJ Nominees Pty Ltd (2003) 202 ALR 428 this Court has power to grant the leave he seeks. The defendant contends that as the plaintiff had not commenced an application for leave prior to the 1999 amending Act coming into force this Court does not have that power.

5. Following Dossett there have been four decisions by judges of this Court in which judges have held that this Court does have power to grant leave where there was no application for leave pending at the time that the 1999 amending Act came into force.  Those decisions are Henderson v KCut Pty Ltd & Anor (2004) WADC 13 (Macknay DCJ); Hanna‑Pauley v David Jones Limited [2004] WADC 69 (Williams DCJ); Duca v Aherns Holdings Pty Ltd (2004) WADC 85 (Chaney DCJ) and Jabar‑Khail v Troon Holdings Pty Ltd (2004) WADC 108 (O'Sullivan DCJ). The District Court judgments database indicates that Hanna‑Pauley and Duca are pending appeal.

6. In Henderson there had been an application commenced before the 1999 amending Act came into force but it had been dismissed.  The earlier application was not a reason for Macknay DCJ's decision.

7. I should follow the decisions of the judges in this Court unless I am convinced they are wrong:  Leary v Federal Commissioner of Taxation (1980) 28 ALR 123 at 127. In my view that is particularly desirable where there are appeals to the Full Court which will determine the issue and there are applications in this Court such as this case which are brought shortly before limitation periods are about to expire and which are determined by registrars of this Court.

8. The defendant argued that s 32(7) of the 1999 amending Act expressed a clear intention that leave should not be granted to commence proceedings after the 1999 amending Act came into force.  In my view Dossett establishes that s 32(7) does not exclude s 37(1) of the Interpretation Act. It follows therefore that whether this Court has power to grant leave turns on whether s 37(1) preserves the capacity to obtain leave where no application was pending at the time that the 1999 amending Act came into effect.

9. Dossett does not determine the point.  In Dossett the defendant employer conceded that the suffering of the injury by the appellant worker in 1996 and the pendency of his leave application satisfied one or more of pars (b) (c) and (f) of s 37(1) of the Interpretation Act 1984 – par 35.

10. In Abbott v Minister for Lands (1895) AC 425 the Privy Council held that a proviso in legislation which preserved "all rights accrued and obligations incurred or imposed" under repealed legislation did not preserve a right to make additional conditional purchases of lands where an individual had not done an act towards availing himself of that right could not properly be deemed as a right accrued.

11. The defendant relied upon the decision in Abbot v Minister for Lands and upon Toolan v Metropolitan (Perth) Passenger Transport Trust (2001) 25 WAR 1 particularly at par 60 where Parker J said:

    "While the terms of s 37(1)(c), viz 'created, acquired, accrued, established or exercisable', appear to be more expansive than the word 'accrued' in the proviso considered in Abbott v Minister for Lands, the reasoning of their Lordships leads to the question whether the present appellant has taken steps towards availing himself of his contingent right or entitlement to an award of damages in accordance with the former provisions sufficient to give rise to a right 'created, acquired, accrued, established or exercisable' within the meaning of s 37(1)(c)."

12. In Toolan the Full Court held that a worker who had appealed against a refusal of this Court to grant leave and was pursuing that appeal had taken steps towards availing himself of his contingent right to damages against his employer.  The Full Court in Toolan did not decide what the position would be if the worker had not taken that step.  Toolan therefore does not decide the position.

13. I am not convinced that the decisions of the judges in this Court to which I have referred are wrong. There are two actions the plaintiff might have commenced in 1999 prior to the 1999 amending Act that could be described as the pursuit of rights. One is an application for leave under s 93D. The other is an action for damages if that leave had been granted. While both rights may be described as contingent Toolan makes clear that contingent rights can be protected by s 37(1)(c) of the Interpretation Act.  Whether any step must be taken to enforce those rights prior to the repealing legislation has not yet been determined.  For these reasons I follow the earlier decisions in this Court and I hold that the Court does have power to grant to the plaintiff the leave he seeks.

The merits of the application

1. The plaintiff's application is made under s 93D(5)(c) on the basis that he is likely to have future pecuniary loss resulting from the disability of an amount that is at least equal to the prescribed amount. It is well established that likely in this context means that he has a real and not remote chance and that conflicts in the evidence are to be determined on the view of the evidence reasonably open which most favours the plaintiff: Toolan at par 27 and par 28.

2. The plaintiff was born on 15 May 1962.  The injury he allegedly suffered was to his shoulder when sudden force was applied to a rope he was holding and his left arm was jerked rapidly into the air.

3. Medical practitioners have diagnosed the plaintiff as having suffered a rotator cuff injury and a tear of the cartilage lining of his left shoulder joint.

4. At the time of the accident the plaintiff was employed by the defendant as a rigger/linesman.  He is now employed in Port Augusta as a part‑time butcher, working 18 hours a week, and in addition works part‑time as a rubbish collector.  As a butcher he avoids any left handed work above shoulder height.

5. In a report dated 16 February 2004 Dr Philip Haynes, Consultant Occupational Physician, has expressed the opinion that the plaintiff is permanently unfit to work as a linesman and described his capacity for work in the following terms:

   "Mr Smith is currently fit to undertake part‑time work as a butcher where he is able to avoid any left‑handed work above shoulder height.  He is also fit to undertake a variety of other work duties which do not require heavy lifting using his left arm and which do not require prolonged or repeated overhead work using his left arm.

   He would be capable of working in occupations such as a consol operator or in process and assembly work meeting the above restrictions."

6. In a report dated 6 May 2004 Mr P L Fry, Orthopaedic Surgeon, has expressed the opinion that the plaintiff is unfit for his pre‑accident work as a rigger/linesman either full or part‑time.  Mr Fry has also expressed the opinion that the plaintiff:

   "is fit for lighter work that does not require repetitive use of the shoulder at or above shoulder height, nor involve any heavy lifting…He has a very reasonable work capacity, and I suspect that most of the [light duty jobs mentioned by the defendant's solicitors] are easier than the present job that he does do…He is quite clearly fit enough to engage in butchering, and rubbish collection, the work undoubtedly falling within the restrictions mentioned.  He is fit to do this full‑time."

7. In a reported dated 25 May 2004 Dr Peter Jezukaitis, Occupational Physician, has expressed the opinion that the plaintiff could not perform his pre‑accident work and that:

   "From a perspective of physical capacity, I would consider that the worker is medically suitable for job functions such as sales assistant, photographer, tour guide, security officer (with the exception of restraint work) tip truck driver providing that demolition work or heavy manual handling was not undertaken, clerical work, light courier work and taxi driving work.

   I would consider that Mr Smith could conduct his current duties for additional hours.  His capacity for full‑time work as a butcher may be limited by the amount of manual handling and by the degree of work intensity involved.  However, this would depend upon the actual work demands.  For example, if a component of customer service could be integrated then full‑time work could be considered.  He would be unsuitable for work where the handling of carcasses would be required."

8. It is clear that the plaintiff has suffered a loss of earning capacity.  While there is some disagreement between the medical practitioners as to the extent of his current work capacity, acting upon the view of the evidence reasonably open which most favours the plaintiff, I conclude that he is currently exercising fully his retained earning capacity and for the purposes of this application his loss should be assessed on that basis.

9. The plaintiff has deposed that at the time of the accident he was earning approximately $680 per week net.  Some confirmation of that level of earnings is provided by his tax return for the year ended 30 June 1998 which shows that his taxable income was $49,265.  The defendant, which was his employer, has not provided evidence disputing the plaintiff's evidence and I assess his loss on that basis.

10. The plaintiff earns $276.65 net per week as a butcher and $85.50 net per week as a rubbish collector so his net income is $362.15 per week, and his weekly loss is $317.85.  The multiplier is 674.3 and his future pecuniary loss before contingencies is therefore $214,326.  A reduction of six per cent for contingencies gives a loss of $201,466 which is well in excess of the prescribed amount of $139,995.

11. For these reasons I dismiss the appeal.