Stockman v Argyle Diamond Sales Ltd
[2002] WASCA 89
•19 APRIL 2002
STOCKMAN -v- ARGYLE DIAMOND SALES LTD [2002] WASCA 89
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 89 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:110/2001 | 1 FEBRUARY 2002 | |
| Coram: | STEYTLER J TEMPLEMAN J McLURE J | 19/04/02 | |
| 18 | Judgment Part: | 1 of 1 | |
| Result: | Appeals allowed | ||
| B | |||
| PDF Version |
| Parties: | ANNA MARIA STOCKMAN ARGYLE DIAMOND SALES LTD |
Catchwords: | Workers' compensation Leave to commence proceedings for common law damages pursuant to s 93D(4) Workers' Compensation and Rehabilitation Act 1981 Issue for consideration by Court on application for leave Whether limited by s 93D(5)(c) of the Act to amount of likely future pecuniary loss resulting from alleged disability |
Legislation: | Workers' Compensation and Rehabilitation Act 1981 (WA), s 5 and s 93D |
Case References: | Chestone Holdings Pty Ltd v Garbelini, unreported; SCt of WA; (FCt); Library No 980584; 19 October 1998 Davidson v Mould (1944) 69 CLR 96 Kavanagh v The Commonwealth (1960) 103 CLR 547 Sampson v Industrial Progress Corporation Pty Ltd, unreported; FCt SCt of WA; Library No 970058; 21 February 1997 Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Company (1882) 11 QBD 55 March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 Matheson v Commissioner of Main Roads & Anor [2001] WASCA 402 Morgan v Banning (1999) 20 WAR 474 Musgrove v Minister for Transport [2000] WASCA 232 Olsen v MacMahons Construction, unreported; DCt of WA (Blaxell DCJ); Library No 4705; 20 November 1995 Sgro v New Cement Co Pty Ltd, unreported; DCt of WA (L A Jackson DCJ); Library No 4564; 9 August 1995 Summit Homes v Lucev (1996) 16 WAR 566 Toolan v Metropolitan (Perth) Passenger Transport Trust [2001] WASCA 131 Ward v Minister for Health (1996) 16 SR (WA) 297 Western Australia v Watson [1990] WAR 248 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : STOCKMAN -v- ARGYLE DIAMOND SALES LTD [2002] WASCA 89 CORAM : STEYTLER J
- TEMPLEMAN J
McLURE J
- FUL 111 of 2001
- Appellant
AND
ARGYLE DIAMOND SALES LTD
Respondent
Catchwords:
Workers' compensation - Leave to commence proceedings for common law damages pursuant to s 93D(4) Workers' Compensation and Rehabilitation Act 1981 - Issue for consideration by Court on application for leave - Whether limited by s 93D(5)(c) of the Act to amount of likely future pecuniary loss resulting from alleged disability
Legislation:
Workers' Compensation and Rehabilitation Act 1981 (WA), s 5 and s 93D
(Page 2)
Result:
Appeals allowed
Category: B
Representation:
Counsel:
Appellant : Mr R R Cywicki
Respondent : Mr T Lampropoulos
Solicitors:
Appellant : S C Nigam & Co
Respondent : Srdarov Richards Burton
Case(s) referred to in judgment(s):
Chestone Holdings Pty Ltd v Garbelini, unreported; FCt SCt of WA; Library No 980584; 19 October 1998
Davidson v Mould (1944) 69 CLR 96
Kavanagh v The Commonwealth (1960) 103 CLR 547
Sampson v Industrial Progress Corporation Pty Ltd, unreported; FCt SCt of WA; Library No 970058; 21 February 1997
Case(s) also cited:
Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Company (1882) 11 QBD 55
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506
Matheson v Commissioner of Main Roads & Anor [2001] WASCA 402
Morgan v Banning (1999) 20 WAR 474
Musgrove v Minister for Transport [2000] WASCA 232
Olsen v MacMahons Construction, unreported; DCt of WA (Blaxell DCJ); Library No 4705; 20 November 1995
Sgro v New Cement Co Pty Ltd, unreported; DCt of WA (L A Jackson DCJ); Library No 4564; 9 August 1995
(Page 3)
Summit Homes v Lucev (1996) 16 WAR 566
Toolan v Metropolitan (Perth) Passenger Transport Trust [2001] WASCA 131
Ward v Minister for Health (1996) 16 SR (WA) 297
Western Australia v Watson [1990] WAR 248
(Page 4)
1 STEYTLER J: These are appeals, by leave, against two decisions given in the District Court in respect of an action for personal injuries brought by the appellant against her employer, the respondent.
2 The appellant worked for the respondent as a diamond sorter. She said that her job required her to "sit on a chair and work at a workbench in an outstretched position with … [her] neck and shoulders flexed forward …". This, she said, led her to suffer from intermittent pain in her neck and shoulders during 1993. However, that pain was not such as to prevent her from working. Then, on 11 July 1994, the appellant attended a "wellness exercise program" which had been instigated by the respondent. In the course of performing one of the exercises set for her during that program, she stretched her right arm and felt a sudden locking and burning sensation in her right shoulder and neck area.
3 She consulted her doctor and was diagnosed as suffering from soft tissue injuries.
4 By originating summons dated 12 November 1996, the appellant applied for leave, under s 93D(4) of the Workers Compensation and Rehabilitation Act 1981 ("the Act"), as it then stood, to bring an action for common law damages against the respondent in respect of her injuries. The summons, as later amended, sought leave to bring an action for damages against the respondent "for injuries sustained by the … [appellant] in the course of her employment with the … [respondent] during the six-year period from 13 August 1992 including the injuries sustained on 11 July 1994 …". The application was heard on 13 August 1998 and a Deputy Registrar of the District Court ordered, on that day, that the appellant should have leave "to bring an action for damages against the … [respondent], for injuries sustained by … [the appellant] on the 11th day of July 1994 in the course of her employment with the … [respondent]".
5 There is no available record of the Deputy Registrar's reasons for making that order.
6 The appellant, being dissatisfied with the order, appealed. It seems that those advising her considered that the order precluded her from including, in the claim which she wished to bring against the respondent, allegations that the injuries sustained by her, or which first surfaced, on 11 July 1994 were contributed to or accelerated by the manner in which she had previously been required to sit and work as a diamond sorter.
(Page 5)
7 By virtue of s 93D(1) of the Act, as it then read, common law damages could only be awarded if the disability suffered by a worker resulted in her death or was a serious disability. Section 93D(2) provided that:
"A disability is a serious disability if, and only if -
(a) the degree of disability would, if assessed as prescribed in subsection (3), be 30% or more; or
(b) the future pecuniary loss resulting from the disability is of an amount that is at least equal to the prescribed amount."
8 The word "disability" was (as it still is) defined, in s 5 of the Act, to mean, so far as is relevant for present purposes:
"(a) a personal injury by accident arising out of or in the course of the employment, or whilst the worker is acting under the employer's instructions;
…
(c) a disease contracted by a worker in the course of his employment at or away from his place of employment and to which the employment was a contributing factor and contributed to a significant degree;
(d) the recurrence, aggravation, or acceleration of any pre-existing disease where the employment was a contributing factor to that recurrence, aggravation, or acceleration and contributed to a significant degree;
…"
9 The word "disease" is defined, in s 5 of the Act, to include "any physical … ailment, disorder, defect or morbid condition whether of sudden or gradual development."
10 A Court, faced with an application for leave to bring an action for common law damages in respect of a disability suffered by a worker, was required, by s 93D(5)(c) of the Act, to give leave if it determined (so far as is relevant for present purposes) that the worker was "likely to have future pecuniary loss resulting from the disability of an amount that is at least equal to the prescribed amount".
(Page 6)
11 It was (and still is) common cause between the parties in this case that, if the appellant suffered from "a disability" as defined in the Act (and both parties appeared to consider that she did), then it was a "serious disability" in that the future pecuniary loss resulting from it was an amount that was at least equal to the prescribed amount. However, it seems, the respondent took the view that any work-related injuries sustained by the appellant arose exclusively out of the incident on 11 July 1994, whereas the appellant contended (as she still does) that her neck and shoulder injuries, which surfaced on that date, amounted to the recurrence, aggravation, or acceleration of a pre-existing physical ailment, disorder or defect, and, as I understand the position, that the pre-existing physical ailment, disorder or defect arose in the course of her employment and that her employment was a significant contributing factor to it.
12 The appeal from the Deputy Registrar's order appears to have been motivated, as I have said, by the appellant's solicitors' belief that the Deputy Registrar's order precluded the appellant from relying, in proving her entitlement to damages for the injuries in respect of which leave to bring proceedings had been given, upon anything other than the incident which occurred on 11 July 1994.
13 Groves DCJ, who heard the appeal, considered that "the finer point for determination on the application" before him was "whether or not the … [appellant] should be granted leave to commence proceedings in relation to the 'discomfort in her right shoulder and neck' which it is said preceded the incident of 11 July 1994" (an approach which appears to have followed from the manner in which the appeal was argued). His Honour went on, in a carefully reasoned judgment, to answer that question in the negative, concluding that the appeal should be dismissed. However, he also said, in the course of his reasons, that he was not satisfied "that it could be said that the neck complaint pre-11 July 1994 accident was such that it contributed to a significant degree to the disability which the … [appellant] now complains of". Having said that, his Honour went on to express his ultimate conclusion as follows (par 26):
"It is claimed, not that there was a prior incident, but rather that there was an aggravation, and I think the circumstances are such, and having regard to the medical evidence, that I am precluded from concluding that there was a prior condition which gives rise to a claim separate to or distinct from the claim which the … [appellant] has been granted leave to pursue. I regard the consequences of the accident on that date as carrying forward the whole of the … [appellant's] complaints, both so far
(Page 7)
- as the neck and the shoulder are concerned. To the extent that the … [appellant] is not now able to return to her pre-accident employment, whether it be as a consequence of her neck injury or whether it be as a consequence of the shoulder injury, I think it may be either/or, or a combination of both, but whichever, they arise as a consequence of the incident on 11 July 1994. For those reasons therefore I propose that the … [appellant's] appeal be dismissed."
14 The appellant did not immediately appeal against the decision of Groves DCJ. Her lawyers prepared, on her behalf, a statement of claim in which they relied exclusively on the incident which occurred on 11 July 1994. However, in the course of providing particulars of negligence and breach of contract on the part of the respondent which were alleged to have caused the appellant's injuries, they included allegations that her work environment had rendered her predisposed to a neck and shoulder degenerative condition.
15 The appellant thereafter sought discovery, from the respondent, of documents relating to ergonomic assessments of the tasks performed by diamond sorters. The Deputy Registrar of the District Court, who heard that application, considered that those documents were not relevant to the pleadings as they then stood. He consequently adjourned the application with a direction that the appellant should bring any application for leave to amend the statement of claim within a fixed period.
16 The appellant consequently applied, in March 2000, to amend her statement of claim so as to allege, inter alia, that, since commencing her employment with the respondent in November 1989, she had developed a degenerative condition or vulnerability in her neck and shoulders and that the incident on 11 July 1994 had aggravated or accelerated that underlying condition.
17 She alleged, in pars 6A, 7 and 8 of her proposed amended statement of claim that:
"6A. Since commencing her employment with the Defendant in November 1989 and in the course of her work as a diamond sorter the Plaintiff was required to sit on a chair and at a work bench in an outstretched position with her neck and shoulders flexed forward, sorting diamonds for prolonged periods of 5 days per week which caused her to
(Page 8)
- develop a degenerative condition or vulnerability in her neck and shoulders ("the underlying condition").
- 7. On the 11th July 1994 at about 9.30am, in the course of her employment, the Plaintiff was required to attend a wellness exercise program at the Defendant's premises and when she was stretching her right arm and pulling her right shoulder using her left hand and arm she sustained injuries to her right shoulder and neck being an aggravation of the underlying condition ("the accident").
8. As a result of the accident pleaded in paragraph 7 hereof, the Plaintiff sustained an aggravation and acceleration of the underlying condition:-
PARTICULARS OF INJURIES
(a) soft tissue injury to the neck;
(b) injury to the right shoulder."
18 In pars 11, 12 and 13 she alleged that the underlying condition was developed by her by reason of the respondent's breach of contract, negligence and breach of statutory duty in specified respects. In pars 10, 14, 15, 16, 17 and 18 she alleged that she has, as a consequence of her injuries, suffered residual disabilities, loss of economic capacity, economic loss and other heads of damage.
19 The application for leave to amend and that for further discovery came before the Deputy Registrar on 5 April 2000. He refused both applications, partly upon the basis that the amendments sought to introduce a new cause of action which did not arise out of the same or substantially the same facts as the old and which was statute-barred, but also upon the basis that any other result would "be to do violence to the original decision and decision on appeal" of Groves DCJ.
20 The appellant appealed against the Deputy Registrar's decision. This appeal ("the second appeal") was heard by H H Jackson DCJ. His Honour rejected a submission that the decision of Groves DCJ permitted the appellant "to argue that any condition pre-existing 11 July 1994 was caused by the … [respondent's] negligence concerning her work environment". He went on to say:
(Page 9)
- "In my view, … [the appellant] cannot argue that that underlying condition was caused by the negligence of the … [respondent]. In so ruling I make it clear that I regard myself as bound by the findings and rulings of his Honour Judge Groves. If he was in error, that should have been taken on appeal, not to me and that is so whether the error be one of fact or law."
21 The appellant then sought, and obtained, leave to appeal against the decision of H H Jackson DCJ and also that of Groves DCJ.
22 So far as the appeal from Groves DCJ is concerned, there was (notwithstanding the manner in which the appeal to his Honour appears to have been argued) only ever a very limited issue for consideration by the Court. As I have earlier mentioned, it was required, by s 93D(5)(c) of the Act, as it then stood, to give the appellant leave to commence her proceedings for damages if it determined that she was likely to have future pecuniary loss resulting from "the disability" in an amount that was at least equal to the prescribed amount.
23 There appears to have been no real issue, in the Courts below, as to the proposition that the appellant had suffered a disability. Nor, as I have said, was there any dispute as to the proposition that the appellant was likely to have future pecuniary loss from the disability in an amount that was at least equal to the prescribed amount. The real debate between the parties, as it seems to me, centred around the questions which of the limbs of the definition of "disability" was or were applicable to the appellant's case and, seemingly, whether there was one serious disability or two.
24 It was, in my respectful opinion, unnecessary for the Court to embark upon those questions at all. There having been a disability, involving one set of injuries, which admittedly met the statutory threshold, the grant of leave to bring common law proceedings in respect of those injuries was inevitable, having regard for the provisions of s 93D(5)(c) of the Act, however those injuries might have arisen.
25 Whether the appellant's injuries did or did not arise solely as a consequence of the incident which took place on 11 July 1994, or were a work-caused aggravation or acceleration of a pre-existing physical ailment, disorder or defect, brought about or significantly contributed to, in turn, by the conditions under which she had been required to work, or whether any such pre-existing condition was of itself significant enough to amount to a "serious disability", were not questions which should have troubled the Court. Once s 93D(5)(c) had been satisfied (as it plainly
(Page 10)
had), the appellant should simply have been given leave to bring her proposed common law action for damages in respect of the clearly identified personal injuries which, it was common cause (for this purpose at least), had been suffered by her, leaving it to be established, at trial, whether they had been caused by the matters asserted by the appellant or by those asserted by the respondent, or both, insofar as that question was material to the respondent's liability in the common law action. (Cf Chestone Holdings Pty Ltd v Garbelini, unreported; FCt SCt of WA; Library No 980584; 19 October 1998).
26 It follows, in my respectful opinion, that the appeal should have been allowed by Groves DCJ and an order made, in substitution for that made by the Deputy Registrar, giving to the appellant leave to bring proceedings for damages in respect of the neck and shoulder injuries suffered by her, without any limitation.
27 So far as the second appeal is concerned, it follows, from what I have said, that there should have been no bar, of the kind to which I have referred, to the amendment and discovery applications brought by the appellant before the Deputy Registrar of the District Court and, on appeal, before H H Jackson DCJ. The orders made in that respect, being based on the terms of the leave order and on the reasoning of Groves DCJ, should consequently be set aside. However, because H H Jackson DCJ did not find it necessary to consider the limitation questions addressed by the Deputy Registrar, and because these were not argued before us, it seems to me that we should return the matter to his Honour to consider that question and any other outstanding questions.
28 It follows that I would allow each appeal and set aside the decisions of Groves DCJ and H H Jackson DCJ. I would substitute, for the decision of Groves DCJ, an order allowing the appeal before him, quashing the decision of the Deputy Registrar, and giving to the appellant leave to bring proceedings for damages against the respondent in respect of the neck and shoulder injuries suffered by her, without any limitation. So far as H H Jackson DCJ's decision is concerned, I would set that decision aside and send the matter back to his Honour for reconsideration in the light of these reasons.
29 TEMPLEMAN J: It was common ground in this appeal that the appellant had suffered "a serious disability", within the meaning of s 93D(2) of the Workers' Compensation and Rehabilitation Act 1981 in force in 1996. It was also common ground that because of the extent of her disability, the appellant was entitled to be granted leave, pursuant to
(Page 11)
s 93D(4), to bring an action for common law damages against the respondent, her former employer.
30 The narrow issue between the parties was whether the order made by a Deputy Registrar of the District Court, by which the appellant was granted leave, was too restricted. The order entitled the appellant to bring an action for damages for injuries she had sustained in the course of her employment on 11 July 1994. It was, however, the appellant's contention that the injury she sustained on 11 July 1994 merely aggravated or accelerated a pre-existing disease to which her employment since 13 August 1992 had been a contributing factor.
31 The order made by the learned Deputy Registrar was upheld by Groves DCJ on appeal. His Honour was of the view, having regard to the circumstances and the medical evidence, that he was "precluded from concluding that there was a prior condition which gives rise to a claim separate to or distinct from the claim which the (appellant) has been granted leave to pursue".
32 I accept the submission of counsel for the appellant that the learned Judge ought not to have explored the question of causation as he did. In my view, once the appellant had satisfied the Court that she had suffered a serious disability which was arguably work related, she was entitled to have her claim adjudicated at a trial.
33 For the same reason, I consider that a subsequent order, made by H H Jackson DCJ, which limited the appellant's right to amend the statement of claim and her right to discovery should also be set aside. That is because the order was based on the original order of the learned Deputy Registrar.
34 I therefore agree with Steytler and McLure JJ that orders should now be made which give the appellant leave to commence proceedings against the respondent pursuant to s 93D(4) of the Act, for damages arising from injuries which the appellant claims to have sustained in the course of her employment with the respondent from 13 August 1992 until 11 July 1994.
35 McLURE J: These are appeals by leave from orders made in the District Court in respect of an action for personal injuries brought by the appellant (plaintiff) against her employer, the respondent (defendant). The first appeal is from an order made by Groves DCJ dismissing an appeal from an order made by a Deputy Registrar granting leave to the appellant to commence the action. The second of the appeals concerns orders made by
(Page 12)
Jackson DCJ upholding the decision of a Deputy Registrar to refuse an application for leave to amend the statement of claim and for further discovery.
The Leave Application
36 This appeal raises for consideration the matters which the Court must be satisfied of in order to grant leave to bring common law proceedings under s 93D(4) of the Workers' Compensation Rehabilitation Act 1981 ("the Act") as it stood in November 1996.
37 By originating summons dated 12 November 1996 the appellant sought leave to bring an action for damages against the respondent "for injuries sustained by the … [appellant] in the course of her employment with … [the respondent] during the six year period from 13 August 1992 including the injuries sustained on 11 July 1994 …"
38 The appellant's application for leave was supported by an affidavit sworn on 23 January 1998. The appellant had worked for the respondent as a diamond sorter from about November 1989. She says that in the course of her employment, she was required to sit on a chair and work at a bench in an outstretched position with her neck and shoulders flexed forward sorting diamonds for prolonged periods five days a week. She also says that she commenced suffering with intermittent pain in her neck and shoulders in about 1993. She continued:
"On the 11th July 1994 I was attending a wellness exercise programme at the request of the Defendant and when I was stretching my right arm, extended at 90 degrees, I felt a sudden locking and burning sensation in my right shoulder and neck area ('the accident')."
39 The appellant annexes to her affidavit various medical reports. There was evidence in the reports that the appellant had some pre-existing constitutional degenerative (that is non-work related) changes in her back. What they pre-existed is not entirely clear but seem to be a reference to 11 July 1994 rather than her employment.
40 On 13 August 1998 Deputy Registrar Harman ordered that:
"The Plaintiff do have leave to bring an action for damages against the Defendant, for injuries sustained by the Plaintiff on the 11th day of July 1994 in the course of her employment with the Defendant."
(Page 13)
41 The order made by the Deputy Registrar refers to the injuries by reference to when they were sustained and identifies the connection with the appellant's employment. These limbs of the order reflect the two limbs of the definition of "disability" in the Act. The term was, and still is, defined in s 5 of the Act to mean, inter alia:
"(a) a personal injury by accident arising out of or in the course of the employment, or whilst the worker is acting under the employer's instructions;
…
(c) a disease contracted by a worker in the course of his employment at or away from his place of employment and to which the employment was a contributing factor and contributed to a significant degree;
(d) the recurrence, aggravation, or acceleration of any pre-existing disease where the employment was a contributing factor to that recurrence, aggravation, or acceleration and contributed to a significant degree."
42 The word "disease" is defined in s 5 of the Act to include:
"Any physical or mental ailment, disorder, defect, or morbid condition whether of sudden or gradual development."
43 Division 2 of Pt IV of the Act places limitations on the awarding of common law damages against a worker's employer independently of the Act in respect of a disability suffered by a worker. Damages could only be awarded if the disability resulted in the death of the worker or was a serious disability. A disability was a serious disability if, inter alia, the future pecuniary loss resulting from the disability was of an amount at least equal to the prescribed amount.
44 Proceedings in which damages are sought could not be commenced without the leave of the District Court: s 93D(4) of the Act. Sub-section 5 of s 93D provided:
"(5) Leave is to be given if –
…
(c) the court determines that the worker is likely to have future pecuniary loss resulting from the
(Page 14)
- disability of an amount that is at least equal to the prescribed amount."
45 Thus the limitation (on recovery of damages) and the prohibition (on commencement of proceedings without leave) only apply in respect of a disability.
46 Groves DCJ dismissed the appellant's appeal from the order made by the Deputy Registrar. After reviewing the evidence the learned Judge concluded that there was no doubt that as a consequence of the accident on 11 July 1994 the appellant suffered an injury and it was in relation to the injury sustained on that date that the Deputy Registrar gave the appellant leave to commence proceedings against the respondent. The learned Judge identified the point for determination by him as whether or not the appellant should be granted leave to commence proceedings in relation to the discomfort in the appellant's right shoulder and neck which was said to have preceded the incident of 11 July 1994. The learned Judge considered whether the pre 11 July 1994 injuries constituted a disability under sub-par (d) of the definition of disability (aggravation of a disease), concluded that those injuries could not be treated cumulatively with the injuries suffered on 11 July 1994 and having regard to the medical evidence, did not regard the pre-11 July 1994 injuries on their own as requiring the grant of leave.
47 The questions in issue are best understood by initially focussing on the nature of the common law claim rather than starting with the statutory concept of disability. The applicant for leave in this case wants to claim common law damages against her employer for alleged work related breaches of duty said to have caused specified injuries. Based on the submissions at the hearing of the appeal, I understand the position to be that the appellant wishes to claim damages in relation to the injuries which manifested themselves (or became symptomatic) on 11 July 1994 and thereafter ("the injuries").
48 The appellant also wishes to contend that the injuries were caused by the respondent's employment related conduct from 1992 up to and including 11 July 1994. In particular, the appellant seeks to contend that as a result of her working conditions, actual physical damage commenced before 11 July 1994 and had been largely asymptomatic until aggravated or accelerated by the occurrence of the work related triggering event or, if there was no prior physical damage, that the respondent's conduct in the relevant period increased her vulnerability to the injuries, or that the
(Page 15)
- injuries occurred as a result of her participation in the wellness exercise programme, or any available combination thereof.
49 In the way the appellant wishes to frame her case, leave is obviously required because she alleges a disability, a concept which is wider than liability in tort. It matters not to the appellant's common law claim whether the injuries are personal injuries by accident or a disease for the purposes of the definition of disability under the Act. However, I note that the appellant characterises the first alternative scenario referred to above as the aggravation or acceleration of a pre-existing disease. That characterisation of the allegation is inaccurate and has created confusion and error in this case. Sub-par (d) of the definition of disability applies where a disease pre-exists the workers employment (that is, it is not work caused) but which is aggravated or accelerated by employment. Further, the reference in par 6A of the proposed amended statement of claim to her employment causing her to develop a "degenerative condition" may be wrongly interpreted as a reference to the acceleration or aggravation of the non-work related degenerative changes referred to in the medical reports.
50 It is clear from the synopsis of the appellant's case that the injuries that manifested themselves on 11 July 1994 are said to be part of a continuum. It is not a question of different injuries at different times being accumulated or aggregated to reach the pecuniary threshold or there being separate and distinct injuries each of which have to satisfy the pecuniary threshold.
51 Further, it was common cause that the appellant's injuries exceeded the pecuniary loss threshold. The respondent concedes an employment connection with the events at work on 11 July 1994, and thus a disability for which leave was required. However, the respondent says that the grant of leave is properly limited because the evidence does not establish any continuing injury prior to 11 July 1994 which has a relevant connection with her employment.
52 This submission raises for determination the question of what an applicant for leave has to establish. I put to one side for the moment the issue of the required standard of proof. That issue has been previously considered by this Court: Sampson v Industrial Progress Corporation Pty Ltd, unreported; FCt SCt of WA; Library No 970058; 21 February 1997. The range of possible elements are:
(a) likely pecuniary loss above the minimum threshold;
(b) the relevant injury or injuries;
(Page 16)
- (c) whether the injuries are relevantly connected with her employment so as to satisfy the statutory definition of "disability";
(d) whether the injury was caused by the employer's negligence or other breach of duty.
53 The answer to the question depends upon the legislative purpose of the limitation and prohibition. It is clear from the statutory language that the purpose of this part of the Act is to limit claims for common law damages to situations where the injuries suffered by the worker, for which compensation could be claimed under the Act, satisfy a minimum threshold of seriousness as defined. The relevant minimum in this case is future pecuniary loss resulting from a disability that is at least equal to the prescribed amount.
54 The requirement for leave is not a means of filtering out weak or unarguable claims. Indeed, I see no warrant in the statutory language or legislative purpose for an applicant for leave to have to satisfy the court in relation to the elements of the common law claim set out in (d) above.
55 However, it is appropriate to bear in mind the distinction between causation giving rise to a common law claim for damages and the causation limb of the definition of disability in the Act. Causation issues do not arise at all if the injuries the subject of the claim fall within sub-par (a) of the definition of disability. In the case of personal injury by accident, the relevant employment connection can be either causal or purely temporal. The words "in the course of the employment" require only a temporal connection with the employment: Kavanagh v The Commonwealth (1960) 103 CLR 547 at 557. It is sufficient if the personal injury by accident occurred whilst at work. However, in the case of aggravation or acceleration of a disease under par (d) of the definition, the connection with employment must be causal although the test of causation is not the same as the test in tort: Davidson v Mould (1944) 69 CLR 96 at 104.
56 It is apparent from the approach taken below that it was accepted that the evidence and order should address both limbs of the definition of disability. The Deputy Registrar's order identifies the injuries by reference to the date they were "sustained" and the relevant work related connection as "in the course of her employment". That is, the Deputy Registrar's order characterises the disability as being personal injuries sustained by accident on 11 July 1994 under par (a) of the definition of disability. The terms of the order were construed by the learned Judge as
(Page 17)
- in effect preventing a claim that the injuries commenced at an earlier time or that they were caused otherwise than by accident on 11 July 1994. In the absence from the appeal papers of the Deputy Registrar's reasons, the learned Judge's construction is consistent with the failure at first instance to make the order sought by the appellant.
57 Perhaps it is because the area of operation "personal injury" under par (a) and "disease" in the other sub-paragraphs of the definition of disability are regarded as mutually exclusive or because the phrase "by accident" was (wrongly) thought to mean to "by an accident" that it was thought necessary to separately consider the injuries sustained or which surfaced on 11 July and any other injuries sustained before 11 July. Whatever the reason, that approach led to error. It resulted in the learned Judge on appeal focussing his attention on the question whether the appellant should have leave to commence proceedings for a pre-11 July 1994 disability. That is not the correct question. It was common cause that the injuries should be treated as a whole in determining whether the pecuniary loss threshold was achieved. The correct question was whether the order made by the Deputy Registrar was unduly restrictive in identifying the date and, in effect, the cause in fact of the injuries and thereby limiting the ambit of the common law claim.
58 In my opinion the Deputy Registrar should not have so limited the grant of leave. In this case it was conceded that the injuries (which on the facts are single and indivisible not separable or apportionable) satisfied the pecuniary threshold. Further, the evidence established that the injuries were triggered by the wellness exercise programme which is a relevant connection with the appellant's employment. At that stage the appellant was entitled to leave. She did not have to go further and satisfy the Court of the medical aetiology of the injuries (for example, whether there was prior latent physical damage or increased vulnerability) or of all the possible work related contributing causes of the injuries.
59 Further it is not the role of the court in a leave application to make binding findings of fact on matters to be litigated in the subsequent proceedings, particularly on issues of medical and factual causation. The court's function under s 93D(4) is to make a preliminary assessment of relevant matters: Sampson (supra) at p 5. It follows that the terms of the order granting leave should not restrict the way in which a party formulates her or his common law claim against the employer.
60 In this case the appellant should have been given leave to bring proceedings against her employer for damages in respect of the injuries.
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- Accordingly, I would allow the appeal and make an order for leave in those terms in substitution for that made by the Deputy Registrar.
Discovery and Statement of Claim
61 The order granting leave under the Act should not have been an impediment to the way the appellant wishes to frame her common law claim. It follows that the subsequent orders concerning the proposed amendments to the statement of claim and discovery, which were based on the terms of the leave order, should also be set aside. However, as Jackson DCJ did not find it necessary to deal with limitation issues which had been addressed below by the Deputy Registrar on the amendment application and because they were not argued in this appeal, I agree these matters should be returned to his Honour for reconsideration in the light of these reasons.
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