State Rail Authority of New South Wales v Cowan

[2003] NSWCA 147

CITATION:	STATE RAIL AUTHORITY OF NEW SOUTH WALES v COWAN & ANOR [2003] NSWCA 147
HEARING DATE(S):	6 June 2003
JUDGMENT DATE:	6 June 2003
JUDGMENT OF:	Sheller JA at 1; Tobias JA at 9; McColl JA at 10
DECISION:	Leave to appeal refused; Claimant to pay costs of the application
CATCHWORDS:	Workers Compensation - Extension of time - Futility of claim - Whether amount of damages recoverable would reach the threshold found in s151H of the Worker's Compensation Act 1987 - Application for leave to appeal from decision of trial Judge - Argument not put to trial Judge
LEGISLATION CITED:	Workers Compensation Act 1987
CASES CITED:	Woolage v State of New South Wales [2001] NSWCA 256 Leppington Pastoral Co Pty Ltd v Juweinat [2002] NSWCA 228
PARTIES :	State Rail Authority of New South Wales - Claimant David Cowan - First Opponent Rail Infrastructure Corporation - Second Opponent
FILE NUMBER(S):	CA 40747/02
COUNSEL:	CRR Hoeben SC S Norton SC/E Walsh - First Opponent
SOLICITORS:	Astridge & Murray - Claimant Maxwell Berghouse & Ives - First Opponent PricewaterhouseCoopers Legal - Second Opponent

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	11516/01
LOWER COURT JUDICIAL OFFICER :	Walmsley DCJ

CA 40747/02
DC 11516/01

SHELLER JA
TOBIAS JA
McCOLL JA

Friday, 6 June 2003

STATE RAIL AUTHORITY OF NEW SOUTH WALES v COWAN & ANOR

JUDGMENT

1 SHELLER JA: This is an application by the State Rail Authority of New South Wales for leave to appeal from a decision given by his Honour Judge Walmsley on 8 August 2002. Before his Honour on that day was an application by the first opponent for an extension of time to bring proceedings in common law against the claimant, to which I will refer as the SRA, and against Rail Infrastructure Corporation. In his decision his Honour granted the extension of time against both of the proposed defendants. A good deal of the argument and a good part of his Honour’s decision was directed to whether or not there was such delay in the application that it should not be granted. As a matter of discretion his Honour was not persuaded that there was.

2 On this application SRA does not challenge those findings by his Honour. The point taken is a limited point and is only a point taken in respect of the grant of leave to proceed against SRA. In a nutshell the point is that his Honour should have refused the application because the common law proceedings against SRA would be futile. That in turn depends upon whether or not the amount of damages recoverable would reach the threshold found in s151H of the Workers CompensationAct 1987 as in the form it was at the relevant time. It is, to say the least, by no means clear that that point was run before Walmsley DCJ. I note that Walmsley DCJ makes no mention of such a point.

3 There does seem to have been some point relating to the pleading depending upon the use in the pleading of the expression “nature and conditions of the plaintiff’s employment”. From time to time in the written and other submissions it was suggested that that was an expression relevant to recovery of compensation under the Act and not applicable to a claim in negligence against an employer. For my own part, I am not persuaded by that argument. However, it is of no concern in this case because as I have said the argument as put was not an argument about the pleading but an argument about futility.

4 Mr Hoeben of Senior Counsel, who put the argument in his usual fair and clear way, relied in part upon a decision of this Court in Woolage v State ofNew South Wales [2001] NSWCA 256. In reliance upon that case Mr Hoeben advanced the proposition that the injuries here described in the evidence as having occurred during the period of employment with SRA should be treated as a number of individual insults, damages for which could never reach the amount of the threshold. It was put that even if they were combined the threshold would not be reached. However, one problem in placing reliance upon the reasoning in Woolage is a later decision of this Court in Leppington Pastoral Co Pty LimitedvNabil Juweinat [2002] NSWCA 228. Mr Hoeben, recognising that there may be difficulties in the reasoning in Leppington from the point of view of his argument, submitted that that reasoning which was found in the judgment of Davies AJA, with which the other members of the Court agreed, was wrong.

5 In the result it seems to me that the situation is as follows. As Miss Norton of Senior Counsel, who appeared for the opponent, pointed out, it is not appropriate at this stage to calculate what damages may be recoverable for the alleged injury or injuries said to have been suffered during this period of employment. We were referred to the fact that the opponent had been seen by a number of doctors, at one point of time suffered from an event which he thought was a stroke, and so on. Therefore it was said to be quite inappropriate for this Court to deny to the opponent the opportunity of suing both employers. In the course of employment with each of them, the opponent was required to use the particular piece of machinery called at least in one form a Cobra and accordingly on the face of it there is understandable desire on behalf of the opponent to join each employer who may, to a greater or lesser extent, have been responsible for the injuries suffered.

6 Furthermore, it seems undesirable that this Court on an application of this type before evidence has been taken and findings made pass upon the reasoning of the Court in Leppington. In short, the arguments about that seem to me to be premature.

7 I am not persuaded that it has been demonstrated that proceedings against SRA would be futile. In any event I am not persuaded that that matter was raised before the Judge.

8 For all these reasons, I would refuse leave to appeal and I would order the claimant to pay the costs of the application.

9 TOBIAS JA: I agree.

10 McCOLL JA: I also agree.

11 SHELLER JA: Those will be the orders of the Court.

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Last Modified: 06/18/2003