Ta v Lucky Import and Export Co Pty Ltd
[2002] WASCA 65
•27 MARCH 2002
TA -v- LUCKY IMPORT AND EXPORT CO PTY LTD [2002] WASCA 65
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 65 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:119/2001 | 7 DECEMBER 2001 | |
| Coram: | PARKER J HASLUCK J PULLIN J | 27/03/02 | |
| 28 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed in part | ||
| A | |||
| PDF Version |
| Parties: | VIEN CAO TA LUCKY IMPORT AND EXPORT CO PTY LTD |
Catchwords: | Damages Future pecuniary loss below amount prescribed in s 93D of the Workers Compensation and Rehabilitation Act 1981 Jurisdiction of Court invoked under s 91 |
Legislation: | Workers Compensation and Rehabilitation Act 1981, s 91, s 93C, s 93D, s 183 Workers Compensation Act 1902 |
Case References: | Caravidas v Holeproof Ltd [1964] VR 146 Ivanhoe Gold Corporation Ltd v Symonds (1906) 4 CLR 642 Klimoski v Water Authority of WA (1989) 5 SR (WA) 148 Linsell v Robson [1976] 1 NSWLR 249 Mocevic v Prok Group Ltd [2001] WASCA 45 Nepi v Northern Territory, unreported; SCNT 79/96; 2 May 1997 R v Peisley (1990) 54 A Crim R 42 Thomas v O'Shea (1989) A Tort Rep 80-251 Whitbread v R (1995) 78 A Crim R 452 Caffarella v Joseph Lucas (Aust) Pty Ltd [1978] VR 227 Hastings v McInnes Transport Pty Ltd (1986) Victorian Workers' Compensation Cases 70-330 House v R (1936) 55 CLR 499 Rankine v Garton Sons & Co Ltd [1979] 2 All ER 1185 SIMU Mutual Insurance Association v Minson's Ltd [1938] NZLR 829 Van Velzen v Wagener [1975] 10 SASR 549 Vandeloo v Waltons Ltd [1976] VR 77 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- HASLUCK J
PULLIN J
- Appellant
AND
LUCKY IMPORT AND EXPORT CO PTY LTD
Respondent
Catchwords:
Damages - Future pecuniary loss below amount prescribed in s 93D of the Workers Compensation and Rehabilitation Act 1981 - Jurisdiction of Court invoked under s 91
Legislation:
Workers Compensation and Rehabilitation Act 1981, s 91, s 93C, s 93D, s 183
Workers Compensation Act 1902
(Page 2)
Result:
Appeal allowed in part
Category: A
Representation:
Counsel:
Appellant : Mr B L Nugawela
Respondent : Ms B A Mangan
Solicitors:
Appellant : Friedman Lurie Singh
Respondent : Phillips Fox
Case(s) referred to in judgment(s):
Caravidas v Holeproof Ltd [1964] VR 146
Ivanhoe Gold Corporation Ltd v Symonds (1906) 4 CLR 642
Klimoski v Water Authority of WA (1989) 5 SR (WA) 148
Linsell v Robson [1976] 1 NSWLR 249
Mocevic v Prok Group Ltd [2001] WASCA 45
Nepi v Northern Territory, unreported; SCNT 79/96; 2 May 1997
R v Peisley (1990) 54 A Crim R 42
Thomas v O'Shea (1989) A Tort Rep 80-251
Whitbread v R (1995) 78 A Crim R 452
Case(s) also cited:
Caffarella v Joseph Lucas (Aust) Pty Ltd [1978] VR 227
Hastings v McInnes Transport Pty Ltd (1986) Victorian Workers' Compensation Cases 70-330
House v R (1936) 55 CLR 499
Rankine v Garton Sons & Co Ltd [1979] 2 All ER 1185
SIMU Mutual Insurance Association v Minson's Ltd [1938] NZLR 829
Van Velzen v Wagener [1975] 10 SASR 549
Vandeloo v Waltons Ltd [1976] VR 77
(Page 3)
1 PARKER J: I have had the advantage of reading in draft the reasons to be delivered by Pullin J. I agree with the views expressed by his Honour and the orders he proposes.
2 HASLUCK J: I agree with the reasons for judgment of Pullin J and to the orders proposed by his Honour. There is nothing I wish to add.
3 PULLIN J: The appellant was born in Cambodia in 1964 and lived in Vietnam, before leaving there as a refugee. He arrived in Western Australia on 27 March 1990. He speaks Vietnamese. He can speak only a little English. He gave evidence via an interpreter. On 30 April 1998, four days after he commenced full-time work with the respondent as a storeman, he suffered a fall in the course of his work. He fell on the right-hand side of his body. He suffered dizziness and pain, and was bleeding from the nose. He was taken to hospital.
4 He sued the respondent for damages for negligence. The parties agreed that judgment should be entered for the appellant against the respondent, for damages to be assessed.
5 The trial Judge, Fenbury DCJ, assessed damages for future pecuniary loss at $62,758. Section 93D of the Workers Compensation and Rehabilitation Act 1981 has the effect that unless the quantum of future pecuniary loss exceeds a certain figure (in excess of $122,000), the Court is not to award damages.
6 As a result, the trial Judge dismissed the appellant's claim.
7 The appellant appeals from that decision. The grounds of appeal are in no logical sequence. The appellant's written outline of submissions organized the grounds of appeal into the following areas of complaint, and that is how I will treat them. The complaints are:
(a) about the trial Judge's finding concerning the appellant's orthopaedic disability;
(b) about the trial Judge's findings concerning the appellant's headaches and what caused them;
(c) about the trial Judge's findings concerning the appellant's psychiatric condition;
(Page 4)
(d) about the trial Judge's findings about whether the appellant could return to his pre-accident occupation;
(e) about some sundry findings made by his Honour;
(f) about the trial Judge's decision concerning s 91 of the Workers Compensation and Rehabilitation Act 1981; and
(g) about the costs order.
Orthopaedic Injury
8 His Honour found that:
[148] "In my view the only significant personal disability that he has is the inability to do heavy work with the right elbow… [149] I accept the evidence of Mr Wang, Dr Bowles and Mr Brash. [150] The loss of the ability to do heavy work with the dominant elbow (the plaintiff being right arm dominant) could, depending upon the circumstances, be a significant loss. The plaintiff's occupation has been described earlier in these Reasons however and it is hard to accept that adaptation to the requirements of employment would be difficult. From what I understood of the various tasks that the plaintiff carried out whilst he was working for the defendant there are only a few tasks such as lifting 25 kilo bags of rice and the like which would be beyond the plaintiff. I think he could perform most of the other tasks referred to in the evidence. Obviously he can stack shelves. He can drive a motor vehicle. He can fill orders. He can do deliveries. There is a very wide range of tasks that would be within his capability. [151] I am not convinced that the plaintiff's disability is likely to be productive of significant economic loss in the future in all the circumstances of the case …[157] … I think it could be said that the plaintiff has retained approximately 85 per cent of his working capacity."
9 A deal of time was taken up at the hearing of the appeal debating whether the evidence showed that the appellant could lift 10 kgs or 20 kgs. The written submissions filed on behalf of the appellant identify conflicting passages in the evidence of Mr Wang, Dr Bowles and Mr Brash on this subject. The submissions then conclude that the trial Judge should have resolved this conflict, and submit that this was necessary because it had critical bearing upon the appellant's residual
(Page 5)
- earning capacity. In my view, there is no need to consider this aspect any further. His Honour concluded that there was a restriction on the appellant's ability to lift heavy items. This means that he accepted the evidence called on behalf of the appellant to that effect. In effect, he resolved any conflict on the evidence in the appellant's favour.
10 The appellant then submits that there was a conflict between the experts about progressive disability which would be caused by post-traumatic arthritis in the elbow joint. Arthritis would restrict his ability to lift heavy weights. The submission was that one expert gave evidence that the appellant was already developing arthritic changes, and another expert gave evidence that the effects of early arthritis were "less significant". The appellant referred to Mocevic v Prok Group Ltd [2001] WASCA 45, where the Full Court found that a trial Judge had erred in failing to make appropriate findings as to which of the opinions of doctors he preferred, and erred in failing to reach a conclusion about the exact extent of the appellant's residual disability. The appellant then submitted that:
"These errors are particularly grave when it is borne in mind that the learned trial Judge observed that working with the Defendant not only required moving up to 100 bags weighing up to 25 kilograms per bag, but also that cartons of other goods were still significantly heavy being something in the region of perhaps 15-20 kilograms."
11 As I have already said, his Honour found that there was, and would be, a restriction on the appellant's ability to lift heavy weights, and so his Honour accepted that there was a restriction on the appellant's ability to lift heavy objects. The existence of arthritis is relevant to present purposes only insofar as it would affect the appellant's ability to return to work as a storeman. The appellant suggests that there was a conflict between the opinions of Mr Wang and Mr Brash on the one hand, and Dr Bowles on the other, about the effect of arthritis. A full reading of their evidence leads me to the conclusion that there was no real difference between them on this subject.
12 Mr Brash is an occupational physician. His medical reports appear to have been tendered by consent. There is no transcript of any oral testimony of Mr Brash at the trial.
13 The following is a selection from one of his reports:
(Page 6)
- "There is no doubt in my opinion that this patient does have residual disability in the right elbow. He does lack full extension and probably full flexion with perhaps some limitation of pronation. Supination however, is full. I accept that there is probably some weakness here. I would place a permanent residual disability in the right elbow at 10% loss of function of the whole of the right arm. I do believe that if he were so motivated this patient could do a lot of work. Although he has a disability I have seen people with similar disabilities go back to the full activities of daily living, including heavy lifting etc…
I agree with Dr Michael Bowles where he states 'his presentation of pain does present significant psychosocial yellow flags as well as the large functional component of his examination' …
I am not able to reconcile the patient's severe, constant, widespread symptoms with the underlying pathology … I place his permanent residual disability at 10% loss of function of the dominant right arm." [See Mr Brash's report of 23 November 1999, AB 275-278.]
14 Mr Wang, the treating orthopaedic surgeon, wrote reports which had the following to say:
"In view of Mr Ta's present symptoms and disabilities, it is reasonable that he is not capable of returning to full unrestricted pre-injury employment duties at this stage. Mr Ta has significant pain and stiffness in both his elbow and wrist requiring ongoing treatment.
In my opinion given Mr Ta's current level of symptoms and disabilities, it is appropriate that he begin the rehabilitation process into alternative duties at this stage. This rehabilitation process is conducted by Fran Smart, and some of the alternative duties which she has listed would be appropriate on a part time basis at this stage. [Mr Wang's report of 18 November 1998, AB 451].
Mr Ta is reporting more severe symptoms than I would have expected from his wrist injury, and following his elbow surgery. [Mr Wang's report of 20 January 1999, AB 457].
(Page 7)
- Mr Ta has arthritic changes in the radio-capitellar joint subsequent to his radial head fracture, and for this reason he may have long term pain and restriction in elbow extension. This will leave him unable to undertake heavy manual work in the long term. [Mr Wang's report of 21 May 1999, AB 461].
The reason for his ongoing lateral sided elbow pain is early post traumatic osteoarthritis affecting the radio-capitellar aspect of the elbow joint. I obtained further xrays … which confirm early osteoarthritis of the radial head, and the previous fracture of the radial head … I have said to Mr Ta via his wife who was acting as a translator, that his right wrist and elbow has the physical capacity to do light bench top work, with a maximum lifting capacity of 10kgs with two hands, and repetitive lifting with the right upper limb alone, having a limit of 2kgs. These are guidelines only, but if Mr Ta had the opportunity to work within these parameters, in my opinion he has the physical capacity in the right upper limb to manage. If a position as a storeman were to become available, and the work duties fell within these restrictions, then in my opinion Mr Ta should be able to manage in that position …
In my opinion Mr Ta has a ten percent permanent residual disability in the right elbow subsequent to his work injury." [Mr Wang's report 10 July 2000, AB 464-465.]
15 Mr Wang gave oral testimony (AB 170) in which he said that arthritic symptoms were likely to deteriorate with time and that symptoms are weather dependent, but that the arthritis itself did not fluctuate.
16 Dr Bowles in his reports had this to say.
"Overall I felt there was a strong functional component to his presentation and it was impossible to gauge any true underlying disability, particularly in relation to residual elbow movement. I note the hand assessment report by Judith Wilton was limited by the pain.
Diagnosis
Mr Ta suffered a fracture to the radial head which resulted in a loose osteo-condyle fragment removed. (sic). He has some post-traumatic arthritic changes in the right radio capitellar joint …
(Page 8)
- Prognosis for this case in terms of achieving a return to work in any form would have to be extremely guarded.
…
He may at a later date require some form of surgery to his radio-capella joint in relation to arthritis, but that is many years away …
I do believe Mr Ta could undertake any form of alternative duties on a full-time basis, given some reasonably minor restrictions on the lifting for the right arm. The range of movement reduction in his right arm is his only identifiable disability and I believe that there is an underlying, full-time capacity for employment in all ranges with the exception of heavy manual labour and repetitive right-arm tasks involving such activities as hammering or holding heavy machinery.
As noted above, the prognosis for this case is poor. Mr Ta's perception of his disability and his presentation of pain does present significant psychosocial yellow flags as well as the large functional component to his examination." [Dr Bowles report dated 28 July 1999, AB 259-260.]
17 Dr Bowles, in his oral testimony at AB 215, confirmed that surgery for arthritis may be necessary.
18 The overall impression to be gained from all of that evidence is that the three medical practitioners agreed that there was a disability in the appellant's right elbow; that he was suffering from arthritis; and that he would be restricted in his ability to lift heavy objects. Mr Brash and Dr Bowles considered that the appellant had a "functional" or psychosomatic disorder in addition to the injury which did prevent him from engaging in heavy lifting with his right arm, but that aspect of their evidence is not the subject of the grounds of appeal. I therefore see no error in the trial Judge saying that he accepted the evidence of Dr Bowles and Mr Brash and Mr Wang.
19 In my view, there is no error demonstrated in his Honour's decision on this point.
20 The appellant next complains that his Honour, having reached the conclusion that there was a restriction on the appellant's ability to lift heavy objects and that he was required to lift heavy objects in his
(Page 9)
- pre-accident employment, should have found that he had lost the earning capacity he had before the accident. The appellant argued that the decision of Thomas v O'Shea (1989) A Tort Rep 80-251 cast an evidential burden on the respondent to show what alternative employment opportunities were open.
21 In Thomas v O'Shea (supra), Malcolm CJ and Wallace J said:
"The legal onus of proof of loss of earning capacity rests, of course, on the plaintiff, but once the plaintiff has proved that he has lost his pre-accident earning capacity and has been unable to find alternative employment, or that his condition has prevented him finding alternative employment, an evidentiary burden is cast on the defendant to show what alternative employment opportunities were open, including the state of the labour market and the likely earnings …"
22 In Linsell v Robson [1976] 1 NSWLR 249, which is one of the cases referred to in Thomas v O'Shea (supra), Hutley JA put it this way at p 251:
"This Court has laid down in clear terms what is required of a plaintiff who claims to have lost part, but not all, of his earning capacity … He is required to provide evidence, not only of what he could earn prior to his injury, but what he is capable of earning since his injury … This is not a case, in my opinion, where the evidentiary burden has passed to the defendant. The efforts of the plaintiff were very meagre, and, only after considerable efforts to obtain an occupation have been made and failed, does the burden pass to the defendant to show that there is something the plaintiff can do."
23 In that case, Hutley JA noted that a Court can be driven to award only a nominal sum for loss of earning capacity if the evidence is inadequate.
24 These authorities refer to a loss of earning "capacity", not a loss of earning from the precise job that a plaintiff was working in before the accident.
25 The trial Judge's remarks in par 150 of his reasons for decision, which I have quoted, show that his Honour concluded that the appellant did had 85 per cent of his pre-accident earning capacity because he could still work as a storeman or delivery man, albeit he could not lift "25 kilo
(Page 10)
- bags of rice and the like". I accept that the limitation on the appellant's ability to lift heavy objects meant that his earning capacity was affected to some degree. That, however, does not shift any evidential burden to the respondent. It was still necessary for the appellant to show something more before there was any shifting of the evidential burden. The appellant had to show, in addition, that he has been unable to find alternative employment. His evidence mainly went to show that he tried rehabilitation with the respondent and that this was unsuccessful. The only section of transcript dealing with the subject of the appellant trying to find extra work reads as follows:
"Have you, Mr Ta, tried to go back to work or find a job?
THE INTERPRETER: Sorry, can you repeat the question?
NUGAWELA, MR: Have you tried to find a job since you stopped working at Lucky?---Friends of mine came to visit me and I talk about a situation with friends and they did introduce me to find some work like at the – to try to – where they clean up all the glasses.
Spectacles?---Spectacles, yes.
Were you successful in getting a job?---No. They didn't take me on."
Headaches
27 His Honour found:
"The plaintiff also asserted that he suffered headaches as a result of the accident. I have no doubt that he had those headaches in the early period following the accident but there is a very surprising three month gap in his medical history from May to August which suggests to me that if had any headaches during that period then they were certainly not of great significance. There is no neurological problem. Of course these proceedings are stressful and the plaintiff has been under some stress and pressure for some time but by virtue of his
(Page 11)
- participation in the process I am not convinced that headaches are going to feature significantly let alone permanently in his future life."[146]
28 At par 20 the trial Judge noted:
"Apart from pain and discomfort and loss of function in his arm the plaintiff complained of significant headaches which he said commenced on one side of the head and moved over the whole head. The headaches are occasionally accompanied by vomiting. This does not occur every week but on occasions. Prior to the accident the plaintiff rarely had problems with headaches. The headache problems occur at any time. He takes prescribed tablets to ease the pain. The last headache he had prior to trial was 48 hours beforehand."
29 The recording of the evidence in par 20 and the findings made in par 146, indicate that his Honour accepted that headaches were caused by the accident, that he suffered these in the early period following the accident, and that he still suffers from headaches but that the headaches he has suffered in more recent times up until the time of the trial were headaches caused by stress and would not in the future feature significantly or permanently.
30 His Honour's view that these were stress or tension headaches, was supported by Dr Schaeffer.
31 The appellant's complaint must therefore be seen as a complaint about his Honour's finding that the headaches in more recent times were not caused by the accident. The complaint is, in particular, about his Honour's reference in par 119 to Dr Stell's evidence. His Honour said:
"Dr Stell was a good witness whose views were not controversial. He did not seem to be able to provide anything useful to help the plaintiff. He was unable to find any cause for the plaintiff's headaches and is not really able to provide much relief. Obviously he accepts the plaintiff's complaints without question. And it is noteworthy that the plaintiff was prepared to undergo the procedure of injections although there was no evidence about whether this was particularly uncomfortable or not. The plaintiff apparently had relief for a month but then his headaches came back."
32 His Honour continued at par 120:
(Page 12)
- "Dr Stell made some recommendations concerning alternative medication for the plaintiff's vascular headaches and, failing any benefit, he suggested the possibility of a referral to a pain clinic. There is no evidence that any of these steps were taken by the plaintiff. Dr Stell commented that there were no physical signs to the plaintiff's complaints, and he found no objective neurological signs which could preclude the plaintiff from working."
33 The appellant says this is an incorrect view of the evidence of Dr Stell. Indeed, it is said it is against the evidence given by Dr Stell. Dr Stell's report of 2 June 2000 reads:
"Vascular headaches are not an infrequent sequel of head trauma, particularly in patients who have a preceding history of migraine though patients without a past history of headaches are also susceptible. These headaches usually do not persist long term though it has been my experience that in some patients this is the trigger for the subsequent development of migraine headaches on a regular basis and this would appear to be the case in Mr Ta. Having said this, his headaches appear to have been rather refractory to the usual anti-migraine medications …
I reaffirm my opinion that Mr Ta is suffering from post traumatic vascular headaches. The headaches are typically vascular, often preceded by nausea and vertigo, and have a throbbing quality. Furthermore the headaches followed shortly after the injury. …
Whilst it may be that this man is manifesting a degree of elaboration, I do not feel that it is logical to thereby assume that all of his complaints have a non-organic basis.
With regard to Mr Ta's capacity to work as a storeman: - If, as was the case in July 1999, he is having headaches every two to three days, each lasting one to two days, it would seem unlikely that he would be able to continue to work, notwithstanding any problems that he has with the right upper limb …" (See AB 472-473).
34 Earlier, on 21 September 1998, Dr Stell had written a report concerning the appellant referring to the hemicranial headaches (see AB 466). On the second page of that report, Dr Stell said:
(Page 13)
- "I would agree that this man is suffering from post traumatic vascular headaches, certainly as a result of irritation of soft tissue structures in the upper cervical spine."
35 Based on those reports, the appellant complains that his Honour was wrong to conclude that Dr Stell was "unable to find any cause for the plaintiff's headaches". At first this seems a somewhat puzzling statement by his Honour, given that only a few paragraphs before, in par 114, the trial Judge had noted that "Dr Stell's opinion was that the plaintiff was suffering from post traumatic vascular headaches 'certainly as a result of irritation of soft tissue structures in the upper cervical spine'." It is therefore clear that his Honour did not simply overlook Dr Stell's evidence. What then did his Honour mean when he said that Dr Stell was "unable to find any cause for the plaintiff's headaches"? A reference to Dr Stell's oral evidence makes it clear to me that his Honour's comment should be read as a reference to Dr Stell's oral testimony at AB 229D that there were no physical signs, and no objective neurological signs, which would preclude him from working and that the conclusions he (Dr Stell) reached were based on the history which the appellant gave to Dr Stell. Dr Stell also gave evidence that headaches of a post-traumatic vascular type can be exacerbated by stressful circumstances or anxiety (see AB 229E). Putting all of that material together, I am of the view that his Honour did fully and properly appreciate the evidence given by Dr Stell. In my view, his Honour's statement that Dr Stell was unable to find any "cause" for the appellant's headaches, is a reference to a lack of any "neurological" cause. I also note that Mr Brash, in his report of 1 September 2000 (AB283), said:
"Other symptoms. These include headaches, dizziness, right neck pain and low back pain. I believe the important documentation is the notes from the Emergency Department of Royal Perth Hospital. The (sic) state that Mr Ta had no loss of consciousness and no neurological symptoms. I therefore believe that these symptoms have no anatomical/pathological basis. I am unaware of patients going on to long-term headaches as a result of a simple concussion alone. Mr Ta did not suffer concussion. I certainly agree with Mr Harold Shaeffer when he states, 'I point out that his strong tendency to over react to gentle palpatation and movement of the right upper limit as well as the nonorganic hypo-aesthesia is strongly indicative of the existence of a marked non-physical element compounded these injuries … I consider that his headaches and dizziness represents symptoms of a nonphysical nature, the sole
(Page 14)
- possible medical explanation for headaches is that they are ordinary tension headaches'."
36 His Honour noted that there was a lack of any medical history for several months, as a result of which his Honour concluded, as he was entitled to do, that the headaches during that period were not of great significance. In my view, it is not possible, once all of those factors are taken into account, to conclude that his Honour was wrong when he concluded that while the appellant did suffer headaches caused as a result of the accident, they were not going to "feature significantly let alone permanently" in his future life.
Depression
37 At par 85, the trial Judge said: "Dr Sang spoke about the plaintiff suffering from depression which of course is a medical diagnosis which he is not qualified to make". Dr Sang is a psychologist. His Honour was clearly relying on the decision in the District Court in Klimoski v Water Authority of WA (1989) 5 SR (WA) 148, which was to the effect that a psychologist was not qualified to express an opinion about whether a person was suffering from a psychiatric illness or not. See also similar comments by the New South Wales Court of Criminal appeal in R v Peisley (1990) 54 A Crim R 42: cf Whitbread v R (1995) 78 A Crim R 452 and Nepi v Northern Territory, unreported; SCNT 79/96; 2 May 1997.
38 Counsel for the appellant, in his submissions, therefore sought to challenge the correctness of the conclusion in Klimoski's case. Counsel for the respondent objected to this submission because, she said, counsel for the appellant had informed the trial Judge that Dr Sang's evidence was not lead to prove depression. This Court was taken to a section of transcript of the trial where counsel for the respondent had objected to Dr Sang's evidence on a number of grounds, including the fact that Dr Sang was not a medical doctor but a psychologist. The transcript revealed that counsel for the respondent referred the trial Judge to Klimoski's case. During the course of these submissions to the trial Judge, counsel for the appellant intervened and said:
"Your Honour, I can really assist you very quickly. We don't rely on Mr Sang's report for diagnosis of depression on major depressive illness. He was involved to give counselling in respect of the medical diagnosis made by Dr Nguyen of depression to the extent that his report to my learned friend
(Page 15)
- alleges, purports to diagnose PTSD. Well, I don't see anywhere in the report where he diagnoses PTSD. We don't rely on his evidence for that. I don't know if that takes care of most of those objections."
39 Counsel for the appellant then conceded that the question about the correctness of Klimoski'scasedid not arise because of the way the trial was conducted. As a result, the appellant's complaint about his Honour's rejection of Dr Sang's evidence on the subject of depression cannot be sustained. As a further result, I agree that it is not necessary to review the correctness of the decision in Klimoski's case.
40 Notwithstanding that conclusion, the appellant does still complain about his Honour's conclusion (par[86]) that there was no other evidence adduced that the appellant was suffering from depression.
41 The appellant says that this conclusion was because of the evidence from Dr Nguyen. Dr Nguyen was the appellant's general practitioner, who from time to time issued progress certificates in the form of a one-page printed document which provided for boxes to be ticked and a small amount of additional material to be added and to be supplied by a medical practitioner. These forms are used for the purposes of workers' compensation claims. In the certificate of 24 June 1999, Dr Nguyen, under the printed portion which reads: "Clinical findings and diagnosis on this attendance", had written in the word "depression". The same word appeared on one other certificate dated 17 September 1999.
42 On 30 May 2000, Dr Nguyen wrote a more detailed medical report, on the second page of which he said:
"As mentioned above, Mr Ta is receiving psychological support from Dr David Sang, whom I have asked to send a report to you as well. My understanding is that Mr Ta is still significantly depressed and I shall not elaborate on this any further as Dr Sang shall be writing to you soon."
43 Then, when Dr Nguyen gave oral evidence before his Honour, reference was made to the progress certificate which I referred to above and which is dated 24 June 1999. On p 113 of the transcript [AB 139], Dr Nguyen was asked:
"The next page, page 33? ---It says depression and right elbow pain.
(Page 16)
- That's your clinical findings and diagnosis?---Yes.
Depression?---Yes.
Was that the first time you had diagnosed depression?---I haven't looked through all of them but if I may look through it, then I might answer your question.
The date of that is 24 June 1999:---Yes, that was.
And you referred him to Dr David Sang?---That's correct.
Who is a clinical psychologist?---That's correct."
44 He was also referred, in his oral evidence, to the portion of the medical report I have set out above.
"My understanding is that Mr Ta is still significantly depressed?
---Yes.
Does that follow from your diagnosis of depression that you had made earlier?---Yes."
45 Dr Nguyen was not cross-examined about his diagnosis of depression.
46 In view of the evidence and the lack of cross-examination, it is clear that his Honour was in error when he concluded that there was "no … evidence adduced on behalf of the plaintiff in this case" about whether the appellant suffered from depression. The significance of this error will be discussed under the next heading.
Return to Pre-accident Occupation within Two Years
47 At par 156, the trial Judge said:
"Given my views about the extent of the plaintiff's retained capacity and my acceptance of the evidence that, with assistance in redirection and motivation, and with support, that he should be capable of returning to the work force then a fair way of assessing his loss is to decide how long it might take for the process to be completed. As to this there is no evidence but I would have thought that he should be able to obtain and hold suitable employment at least by two years hence. …"
(Page 17)
48 In par 157, his Honour said:
"I think a fair global allowance for loss of earning capacity in the future for the plaintiff would be an assessment of $50,000. That sum is in excess of 2 year's income at award rates which, in itself, is in excess of any income the plaintiff has every (sic) earned but I think it is fair and reasonable in all the circumstances. I reach that view because I believe that within a period of 2 years at the most the plaintiff should be capable of returning to the work force and exercising the very considerable retained earning capacity that he is said to have."
49 As his Honour said, there was no evidence (I assume he means no direct evidence) about when the appellant could return to work. The trial Judge therefore had to draw an inference based on all the evidence about when he could resume work. In view of his Honour's findings about headaches, depression and the effects of his elbow injury, this assessment of a two-year period was generous to the appellant. He made his assessment on the basis that the appellant was not likely to continue to suffer post-traumatic headaches. All the relevant doctors thought that his elbow injury would allow him to work, albeit restricted in his ability to lift heavy objects.
50 The question arises, however, as to whether his Honour would have reached a different conclusion if he had taken account of the evidence that the appellant had suffered from depression. I have already concluded that his Honour erred in concluding that there was no evidence that the appellant suffered from depression.
51 In my view, his Honour's conclusion about recovery within two years should not be upset because of his error in failing to notice Dr Nguyen's evidence that the appellant had suffered from depression. Dr Nguyen prepared many medical certificates. They commence in August 1998, and they run through until March 2000. With the exception of one or two months in that period, there are one, two or three certificates per month. It was only on two (one dated 24 June 1999 and the other 17 September 1999) that depression is diagnosed. There are over 40 other certificates where depression is not diagnosed. Then, after the last of the certificates in March 2000, there is the letter of 30 May 2000 which I have referred to above. On my reading of the letter, it does not contain a diagnosis of depression. It expresses an "understanding" that the appellant was suffering from significant depression.
(Page 18)
52 Dr Nguyen's evidence in Court that "his understanding" was that the appellant was suffering depression, is not evidence that he diagnosed depression at the time of trial. Dr Nguyen merely said that he understood that the appellant was suffering depression because of his two earlier references to depression.
53 As a result, I do not consider that his Honour's failure to notice that depression had been diagnosed on only two visits to Dr Nguyen (the last being on 17 September 1999), affects the conclusion that, based on all the evidence, the appellant would be able to return to work within two years.
Sundry Matters
54 Ground 9 reads:
"Further the learned Trial Judge's conclusions on the Appellant's (Plaintiff's) credibility or reservations in respect thereof, were unfair and/or unsafe and/or unsupported by any or adequate reasons:
Particulars
a) At Reasons [33] in concluding that it was curious that the Appellant (Plaintiff) declined to work in the sun given his country of origin;
b) At Reasons [47] in merely expressing 'concerns about his credibility';
c) For concluding at Reasons [54] that 'there were some times when (the Appellant (Plaintiff)) was unconvincing in the witness box';
d) For stating at Reasons [87] that 'interestingly, Dr Sang stated that he was aware that the Appellant (Plaintiff) had taken his family to Vietnam for a holiday in about 1997';
e) For concluding at Reasons [32] that the Appellant (Plaintiff) had a greater ability to speak English than was apparent."
55 In the written outline, the appellant referred to the comments his Honour identified in Ground 9 and then submitted that his Honour had wrongly concluded that the appellant had a "significant retained earning
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- capacity". The appellant submits that this wholly discounted the findings in evidence in relation to the real difficulties the appellant would face in obtaining employment.
56 In my view, there is no justification for that complaint about his Honour's reasons for decision. His Honour found at par 54 that:
"His marketability as a worker is significantly dependent upon his physical fitness. He also needs to be able to speak English unless he is employable in a place where English is not spoken. There were some times when I thought he was unconvincing in the witness box but generally he did not come over too badly given the sorts of difficulties to which I have referred in these reasons so far."
57 The extent to which the appellant was unable to find work (and reasons for this) was for the appellant to prove. As I have already noted, he gave no evidence at all of any effort to find any employment after the accident, apart from his effort to work with the respondent during rehabilitation.
Section 91
58 Ground 10 of the notice of appeal reads:
"10.1 The learned Trial Judge erred in law in construing s 91 of the Workers' Compensation & Rehabilitation Act 1981. Section 91 conferred jurisdiction upon the District Court which although delegable to the Directorate for the purposes of assessing the quantum of statutory entitlements, nevertheless conferred a power which was exercisable by the learned Trial Judge at first instance.
10.2 The learned Trial Judge erred in law in failing to give any or adequate reasons as to why s 91 of the Act did not apply."
59 The appellant's complaint in ground 10.2 that the trial Judge erred in law in failing to give any reasons as to why s 91 of the Act did not apply, must be rejected immediately. There were reasons for decision. I do not know why the draftsman of the notice of appeal included that complaint. That complaint is dismissed.
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60 I now refer to ground 10.1. I should begin by relating the circumstances which led to the motion for judgment under s 91. The appellant sued the respondent for common law damages. The claim was dismissed because the trial Judge, having found that future economic loss did not exceed the prescribed amount, complied with the provisions of s 93D and s 93C. The first of those sections states that "damages can only be awarded if the disability … is a serious disability", and the second section states that if Division 2 of Part IV of the Act applies "a court is not to award damages to a person contrary to this Division". The disability to the worker was held not to be a serious disability, Division 2 Part IV of the Act applied, and so his Honour did not award damages to the appellant. He published his reasons to that effect on 7 November 2000 and the appellant then applied for judgment and orders as follows:
"1. The plaintiff's claim for damages be dismissed.
2. The defendant pay the plaintiff compensation payable pursuant to … s 91 of the Workers' Compensation and Rehabilitation Act 1981 as amended in the following terms:
2.1 Future workers' compensation weekly payments $50,000 (or up to the prescribed amount).
2.2 Future medical treatment $5,000 (or up to the prescribed amount).
2.3 Second Schedule in respect of 10 per cent loss of function of right arm at or above the elbow $9,432.90.
2.4 Second Schedule in respect of 5 per cent loss of function of right arm below the elbow (wrist injury) $4,192.40.
Total $68,625.30.
3. There be no orders as to costs in the action."
61 Submissions were made by counsel for both parties, and on 26 June 2001 his Honour published his reasons for decision in relation to that application.
62 Both parties agreed that the appellant had in the past received, and was at the time of the hearing receiving, his workers' compensation
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- weekly payments. There was no contest or issue between the parties about the obligation on the respondent to pay worker's compensation to the appellant. The language of s 91 is couched in mandatory terms, so that if the employer is held "not liable in such action, but that he would have been liable to pay compensation under this Act", then the Court in which the action is tried "shall" assess that compensation or refer the assessment of compensation to the Directorate. Griffiths CJ in Ivanhoe Gold Corporation Ltd v Symonds (1906) 4 CLR 642 at 652, pointed out that the words of the section were "imperative" but then said at p 653:
"… It follows that in all cases to which sec 9 (which is the equivalent of s 91 the present Western Australian Act) applies the Court is expressly directed (ie, at the instance of any party entitled to invoke its jurisdiction) to proceed to assess compensation." (The underlining has been added by me for emphasis.)
64 The trial Judge's reasons concerning the application for a s 91 judgment were as follows:
"The plaintiff relies on s 91 of the Act which reads as follows:
'If an action is brought to recover damages independently of this Act, and it is determined in such action that the disability is one for which the employer is not liable in such action, but that he would have been liable to pay compensation under this Act, the Court in which the action is tried shall assess that compensation, or refer the assessment of the compensation to the Directorate, and shall deduct from that compensation all the costs which have been caused by the plaintiff bringing the action, instead of taking proceedings under this Act, and shall enter judgment accordingly.' …
In short the plaintiff asserts that the Court's decision that the plaintiff has failed to prove the prescribed amount of damages, resulting as it did in no award of damages, amounts to a determination in the plaintiff's action to recover damages independently of the Act:
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- '…that the disability is one for which the employer is not liable in such action' (s 91).
- The plaintiff proved negligence in the action before the Court. The plaintiff was therefore entitled to damages. The fact that he did not obtain an award of damages was because the amount assessed failed to reach the prescribed figure. It was not because of any flaw in the cause of action. The employer was liable for the plaintiff's disability. But because of the legislation the plaintiff was not entitled to an award for his injuries and loss.
…
In such cases s 92 of the Act provides for a right of election as to whether the plaintiff have judgment or discontinue the action."
65 (His Honour then quoted passages from the Ivanhoe Gold Corporation case (supra) and continued):
"As counsel for the defendant pointed out, the employer has never denied the plaintiff's entitlement as a worker to workers' compensation under the Act. The employer's liability under the Act was always accepted by the employer. The plaintiff's remedies are set out in s 92 and he has a right of election either to move for judgment or to elect to discontinue and continue with his remedies under the Workers' Compensation Act.
I agree with those submissions.
In my view it is appropriate to make orders in this case suggested in the defendant's minute of proposed orders and accordingly I make the following orders:
1. The plaintiff's claim against the defendant be dismissed.
2. Judgment be entered for the defendant.
3. The plaintiff pay the defendant's costs of the action."
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- " … It cannot be said that the plaintiff's action for damages brought in the District Court resulted in a determination that his disability was one for which the employer was not liable in that action. In my view this section exists to provide relief for those injured workers who fail to prove negligence or breach of statutory duty when they commence their action in the District Court. The plaintiff was not one of those."
67 Contrary to his Honour's conclusion, it is plain in this case that the disability is one for which the employer is "not liable" in the action. It does not matter that the reason why the employer has been found not to be liable is by reason of a plea of confession and avoidance. That is the nature of the plea which allowed the employer respondent to succeed in this case. The employer admitted (confessed) that he was liable in the sense that there existed a duty of care and that the duty of care had been breached, but denied (avoided) liability because of the provisions of s 93C and s 93D, which prohibit the award of damages if the disability was not a serious disability. The decision in Ivanhoe Gold Corporation Ltd v Symonds (supra) makes it clear that a successful plea of confession and avoidance results in the employer being found not to be "liable" for damages within the meaning of the section. The trial Judge therefore erred in his conclusion on this point.
68 Section 91, or its equivalent, has been in the Western Australian Workers Compensation legislation since the Workers Compensation Act 1902. The Ivanhoe Gold Corporation case was concerned with the equivalent section in the 1902 Western Australian Act. A similar provision in one form or another has appeared in all legislation relating to workers' compensation in Great Britain and several Australian States ever since workers' compensation legislation was first enacted. It first appeared in the first British Workman's Compensation Act of 1897. See Caravidas v Holeproof Ltd [1964] VR 146 at 147.
69 Section 91 of the Act can benefit the worker or the employer. If an action for common law damages is dismissed, then the section benefits the worker in circumstances where the employer not only disputed its common law liability but also disputed liability to pay compensation under the Act. The court hearing the common law action is then the court with jurisdiction to deal with the compensation payable under the Act if it determines that the common law action of the worker fails. This is a matter of convenience to the worker.
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70 The section also may benefit the employer. Section 183 of the Act provides that a payment of compensation is not capable of being charged or attached, nor shall any claim be set off against such payment. So, if an employer gains a costs order in his favour in the common law proceedings unsuccessfully brought by the worker, the costs ordered to be paid by the worker could not be set off against future compensation payments if it were not for s 91. Absent s 91, the employer would be obliged to continue paying workers' compensation payments and be left to recover costs from the worker, who may have no assets. A judgment under s 91 confers on the employer, an advantage in the form of a right of set-off.
71 In this case, the respondent does not dispute its obligation to pay, and to continue to pay, workers' compensation under the Act.
72 One would therefore think that it would be the respondent employer who would seek an order under s 91. That is what happened in the Ivanhoe Gold Corporation case. In this case, however, the Court is confronted with the rather strange circumstance of the appellant worker seeking orders under s 91 in circumstances where there is no dispute between the parties about the appellant's right to continue to receive workers' compensation payments. I say the circumstance is strange, because it seems to me that the only party which can benefit from such an order is the respondent. The strangeness of circumstance is heightened by the fact that the respondent resisted an order being made under s 91 before the trial Judge, and still resists such an order being made here, even though such an order would give it the right of set-off denied it if no order is made.
73 Nevertheless, the jurisdiction having been invoked, the trial Judge's refusal to make orders under s 91 was contrary to the statutory direction to do so. He erred in refusing to make a s 91 order.
74 The conditions which have to be satisfied (and which have been satisfied) before the Court enters judgment in accordance with s 91 are that:
(a) it is determined … that the disability is one for which the employer is not liable in such action;
(b) he would have been liable to pay compensation under this Act.
75 Once these two conditions are satisfied, then (jurisdiction having been invoked) the Court must assess compensation (or refer the
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- assessment of compensation to the Directorate) and shall deduct from that compensation, all the costs which have been caused by the appellant bringing the action instead of taking proceedings under the Act, and shall enter judgment accordingly.
76 If his Honour's decision to award costs should stand, then the effect of the order will be to confer on the respondent, the right to set off its costs against the appellant's workers' compensation entitlements.
77 Counsel for the appellant seemed to consider that the Court, in assessing compensation, would arrive at fixed dollar amount notwithstanding that weekly compensation payments are continuing. Counsel for the appellant submitted that the Court would have to assess how long it thought that the appellant would be entitled to weekly compensation payments. He said that as the Court had found that the appellant would be incapacitated for another two years, the Court should assess compensation payable on that basis. That seems to be the only explanation for the appellant seeking an order under s 91. The appellant, I assume, holds the view that if such a judgment is obtained and then, per chance, the appellant recovers his capacity to work in less than two years, he will be able to keep the amount of compensation so assessed and recorded in the judgment. In my opinion, that view is incorrect. In my opinion, in the present circumstances, the judgment would have to be in the form of a declaration. There would be a declaration assessing compensation in the amount which had already been paid and a declaration that the appellant is entitled to continue to receive compensation in such amount as the Act allows, which would be dependent upon how long the appellant remains incapacitated. His Honour should have made a declaration to that effect, plus a declaration that the respondent be entitled to set off the costs referred to in s 91 against future compensation payments. In the circumstances, there would seem to be no point in referring the matter to the Directorate for assessment.
Costs
78 This final ground reads:
"The learned Trial Judge erred in law in awarding the Respondent the costs of the whole action, by failing to take into account relevant considerations:
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- a) That the Respondent had admitted liability for negligence only the week before the trial commenced;
b) That the Respondent had produced the pivotal report of Dr Brash in the first week of September 2000, immediately prior to the commencement of the trial."
79 At the conclusion of the trial, the appellant sought an order that there be no order as to costs in the action. His Honour did not make that order. Instead, he said that he agreed with the respondent's minute of orders, and ordered that the appellant pay the respondent's costs of the action. There are no reasons given in support of this decision. The appellant submits that his Honour should have made the costs orders sought by him because of the late admission of negligence by the respondent.
80 The appellant refers to his Honour's earlier reasons, where he noted that the respondent from the time it filed its defence in January 2000 until 25 September 2000, denied the appellant's causes of action and asserted that the appellant was guilty of contributory negligence. His Honour noted that on the eve of the trial, the respondent admitted negligence in a general sense without specifying any particular, and discarded its allegation that the appellant was guilty of contributory negligence, and thus the trial only involved the issue of the quantum of damages. His Honour then said:
"[4] When the late change in the defendant's stance was queried the Court was met with the response that, in reality, the reason for the denial of liability was because of the insurer's view that the plaintiff would not succeed in proving an amount of future pecuniary loss in excess of the threshold set by s 93D of the Workers' Compensation and Rehabilitation Act 1981.
[5] In my view such a method of proceeding is greatly to be deprecated and especially so when no fresh attempt at compromise is made following capitulation on the issue of liability. This strategy is likely to lessen the chances of compromise and is not in accordance with the spirit of the pre-trial conference system in this Court."
81 The appellant submits that if this had been taken into account in the exercise of his discretion, his Honour would not have made the order for costs which he did.
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82 His Honour had to exercise his usual discretion as to costs and also to decide what "costs … (had) been caused by the plaintiff bringing the action, instead of taking proceedings under (the) Act …". See s 91. Undoubtedly the appellant did cause the respondent to incur costs in bringing the action instead of taking proceedings under the Act, but on the other hand the respondent caused the appellant to incur unnecessary costs by reason of the defence it mounted and which it abandoned at the eleventh hour. The respondent defended the case intending to show that the amount of future pecuniary loss would not exceed the threshold set by s 93D. Instead of pleading that defence, the respondent raised issues which were unnecessary and which must have resulted in the appellant incurring unnecessary costs. In my view, s 91 does not preclude the trial Judge from making an order for costs in favour of the appellant in relation to the costs wasted up until the time that the defence was amended. If his Honour had written reasons for his decision on costs, he would surely have noted his earlier criticism of the respondent's conduct of the case up until 15 September 2000. His Honour would also surely have noted that the lateness of the amendment to the defence must have meant that the appellant had wasted costs in preparing to prove that there was a duty of care and a breach of the duty of care.
83 In my view, those factors strongly militate against an order that the appellant pay the respondent's costs without any offset for the costs the appellant wasted in preparing to prove aspects of the case which the respondent later admitted. In my view, his Honour's discretion miscarried.
Proposed Orders
84 As a result of the foregoing, I would make the following orders:
1. Appeal allowed in part.
2. In lieu of par 2 of the judgment of the District Court there be judgment for the appellant pursuant to s 91 of the Workers Compensation and Rehabilitation Act 1981:
(a) in the form of a declaration:
(i) as to the amount of compensation paid under the said Act up until the date of judgment;
(ii) that the appellant is entitled to future payments of compensation under the Act during his incapacity in such sum as is provided in the Act;
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- (b) the respondent pay the appellant's costs thrown away by reason of the amendment of the defence on 25 September 2000 to be taxed, and such costs to be set off against the costs the appellant was ordered to pay to the respondent by the trial Judge on 6 June 2001;
(c) the net costs payable to the respondent by the appellant shall be deducted from the compensation payable to the appellant under the Act.
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