| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : TIRANT -v- THE STATE OF WESTERN AUSTRALIA [2005] WADC 133 CORAM : COMMISSIONER POWER HEARD : 9 FEBRUARY 2005 DELIVERED : 15 JULY 2005 FILE NO/S : CIVO 161 of 2004 BETWEEN : CHRISTOPHER PATRICK TIRANT Plaintiff (Respondent)
AND
THE STATE OF WESTERN AUSTRALIA
Defendant (Appellant)
Catchwords: Workers' compensation - Appeal against grant of leave pursuant to s 93D(5)(c) of the Workers' Compensation and Rehabilitation Act 1981 to commence proceedings for damages for an alleged disability suffered in the course of employment - Whether leave under s 6 of the Crown Suits Act 1947 is a prerequisite to leave to commence proceedings under s 93D of the Workers' Compensation and Rehabilitation Act 1981 - Whether the plaintiff is likely to have future pecuniary loss resulting from the alleged disability of an amount at least equal to the prescribed amount
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Legislation:
Crown Suits Act 1947
Workers' Compensation and Rehabilitation Act 1981
Workers' Compensation and Injury Management Act 1981
Workers' Compensation (Common Law Proceedings) Act 2004
Result: Appeal dismissed Representation:
Counsel:
Plaintiff (Respondent) : Mr I T Blatchford
Defendant (Appellant) : Mr D M G Burton
Solicitors:
Plaintiff (Respondent) : Paul O'Halloran & Associates
Defendant (Appellant) : Srdarov Richards Burton
Case(s) referred to in judgment(s):
Burke v State of Western Australia (1994) 10 SR (WA) 381
Crow Yougarla & Ors v State of Western Australia & Anor, unreported; SCt of WA; Library No 980387; 17 July 1998
Dossett v TKJ Nominees Pty Ltd (2003) 202 ALR 428
Duca v Aherns Holdings Pty Ltd [2004] WADC 85
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
Irrera v State of Western Australia (1994) 11 SR (WA) 360
Lend Lease Employer Systems Ltd v Lydon, unreported; FCt SCt of WA; Library No 980088; 27 February 1998
Newcombe v AME Properties Ltd & Anor (1995) 14 WAR 259
Pilbara Iron Ltd & Anor v Bonotto (1994) 11 WAR 348
Pollitt v Midland Brick Co (1995) 14 SR (WA) 251
Pollock v Wellington (1996) 15 WAR 1
Sampson v Industrial Progress Corporation Pty Ltd, unreported; FCt SCt of WA; Library No 970058; 21 February 1997
Teddy Biljabu & Ors on Behalf of the Aboriginal Group Known as Martu v State of Western Australia (1993) 11 WAR 372
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Case(s) also cited:
Andrews v Electricity Corporation, unreported; DCt of WA; Library No 4454; 22 May 1995
Crosland v State of Western Australia [2000] WADC 216
Da Silva v United Construction Pty Ltd (1994) 11 SR (WA) 136
Eng Mee Yong & Ors v Letchumanan [1980] AC 331
HannaPauley v David Jones Ltd [2004] WADC 69
Harris v Caladine (1999) 172 CLR 84
Health Department v Prosser [2004] WASCA 83
Henderson v KCut Pty Ltd & Anor [2004] WADC 13
Matheson v Commissioner of Main Roads & Anor [2001] WASCA 402
Mayne v Mayne Nickless, unreported; FCt SCt of WA; Library No 960223; 26 April 1996
McAdam v Chuan [2001] WASCA 6
Re Monger; Ex parte Dutch & Ors (2001) 25 WAR 96
Re Monger; Ex parte TNT Pty Ltd [2002] WASCA 223
Rowe v Durrant & Anor, unreported; DCt of WA; Library No D970270; 12 September 1997
Sgro v New Cement Co Pty Ltd (1995) 15 SR (WA) 44
Webster v Industrial Galvanisers Corporation Pty Ltd (1996) 16 SR (WA) 262
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1 COMMISSIONER POWER: This is an appeal against the order made by Deputy Registrar Harman on 17 September 2004, by which he granted leave to the plaintiff pursuant to s 93D(5)(c) of the Workers' Compensation and Rehabilitation Act 1981 ("the Act"), as it then was, to commence proceedings in this Court for damages for a disability allegedly suffered by the plaintiff in the course of his employment with the defendant on 25 December 1998 ("the alleged disability"). The appeal is brought by the defendant, the plaintiff's employer, on the stated grounds that the decision is wrong in fact and in law. The grounds are not particularised in the notice of appeal.
2 The appeal was conducted as a complete review de novo. Both parties relied on a considerable body of evidence, by way of affidavits, only some of which was before the court at first instance (Hazart Pty Ltd v Rademaker(1993) 11 WAR 26 at 28). 3 I have carefully considered all of the evidence and the written and oral submissions made on behalf of the parties in arriving at my decision. 4 The defendant contends that the present action is a nullity and should be struck out as an abuse of process. The argument which underpins this contention is that the plaintiff required leave under s 6 of the Crown Suits Act 1947 ("the Crown Suits Act") to make an application for leave to commence proceedings under s 93D of the Act. It was argued that the failure to obtain leave under the Crown Suits Act prior to the grant of leave under the Act had the result that the grant of leave under the Act was a nullity and, therefore, the writ of summons commencing the present action was likewise a nullity, no valid leave under the Act having been granted to commence the present action. 5 The second issue requiring determination in this appeal is whether the plaintiff is likely to have future pecuniary loss resulting from the alleged disability of an amount that is at least equal to the prescribed amount. 6 There is no issue about the jurisdiction of this Court to determine this appeal and I am not required by either party to consider the court's jurisdiction to do so. 7 The plaintiff was and is a prison officer employed by the defendant. On 25 December 1998 he was employed in that capacity at Casuarina Prison when he was allegedly injured during a riot involving the prisoners. He alleges that he suffered injuries to his back, neck and right shoulder as well as a psychiatric injury.
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8 The evidence before the court provides a detailed history of the manner in which the alleged injuries were suffered, the nature and extent of those injuries, their treatment and medication, the history of their resolution and the alleged ongoing disability. The evidence also details the extent to which the alleged disabilities arising from the plaintiff's alleged injuries have affected his capacity to discharge his duties and responsibilities as a prison officer.
9 I will refer in more detail to those parts of that evidence which are relevant to the issues to be determined in this appeal. 10 The history of the proceedings before the court is set out in some detail in a chronology filed by the defendant in this appeal and dated 7 February 2005. Again, I will refer to so much of the history of the proceedings as is relevant to the issues for determination in this appeal. 11 The plaintiff was granted leave to commence the present action pursuant to an application for leave under s 93D(4) of the Act. 12 The argument before me proceeded on the basis that I should have regard to the provisions of the Act and the Crown Suits Act as they stood at the time when leave was sought by the plaintiff pursuant to his amended originating summons, which was filed on 21 July 2004. At that time, there had been no consent given by the Attorney General on behalf of the Crown pursuant to s 6(2) of the Crown Suits Act, nor any leave granted by the court pursuant to s 6(3) of the Crown Suits Act. 13 On 10 December 2004, the plaintiff was granted leave pursuant to s 6(3)(a) of the Crown Suits Act to bring an action against the defendant. The defendant consented to the grant of leave. No challenge is made by the defendant to the regularity of that consent or that grant of leave. 14 The writ of summons commencing the present action was filed on 13 December 2004. An unconditional memorandum of appearance was filed by the defendant in that action on 24 December 2004. 15 There is no dispute between the parties that Division 2 of Part IV of the Act applied (Dossett v TKJ Nominees Pty Ltd (2003) 202 ALR 428 at 432 - 438 and 448; Duca v Aherns Holdings Pty Ltd [2004] WADC 85 at [13]-[23] and the cases referred to therein). 16 By s 93C a court was prohibited from awarding damages to a person contrary to that Division, where it applied.
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17 Section 93D was part of Division 2.
18 Section 93D(4) provided: "(4) Proceedings in which damages are sought are not to be commenced without the leave of the District Court." 19 Section 93D(5) relevantly provided: "(5) Leave is to be given if – 20 The expression "future pecuniary loss" in Division 2 was defined in s 93A as: "… pecuniary loss other than that which has already been incurred at the time when the amount of that loss is required to be determined by a court;" 21 Section 93D(1) and s 93D(2) relevantly provided: "(1) Damages can only be awarded if the disability results in the death of the worker or it is a serious disability.
(2) A disability is a serious disability if, and only if – (b) the future pecuniary loss resulting from the disability is of an amount that is at least equal to the prescribed amount."
22 There was no dispute between the parties that the prescribed amount for the purposes of the argument was $139,995.00. 23 Section 6(1) to s 6(3) of the Crown Suits Act provided: "(1) Subject to the provisions of subsections (2) and (3), no right of action lies against the Crown unless — (a) the party proposing to take action gives to the State Solicitor, as soon as practicable or within 3 months
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(whichever of such periods is the longer), after the cause of action accrues, notice in writing giving reasonable information of the circumstances upon which the proposed action will be based and the name and address of the party and his solicitor or agent; and (b) the action is commenced before the expiration of one year from the date on which the cause of action accrued; and for the purposes of this section where the act, neglect, or default on which the proposed action is based is a continuing one, no cause of action in respect of the act, neglect or default accrues until the act, neglect or default has ceased but the notice required by paragraph (a) may be given and an action may thereafter be brought while the act, neglect or default continues. (2) The Attorney General may on behalf of the Crown consent in writing to the bringing of an action against the Crown at any time before the expiration of 6 years from the date on which the cause of action accrued whether or not the notice as required by subsection (1) has been given. (3) (a) Notwithstanding the foregoing provisions of this section application may be made to the Court having jurisdiction to hear the action when the application is granted for leave to bring an action at any time before the expiration of 6 years from the date on which the cause of action accrued, whether or not notice as required by subsection (1) has been given to the Crown. (b) Where the Court considers that the failure to give the notice or the delay in bringing the action as the case may be, was occasioned by mistake or by any other reasonable cause or that the Crown is not materially prejudiced in its defence or otherwise by the failure or delay, it may if it is just to do so, grant leave accordingly subject to such conditions as it thinks it is just to impose.
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(c) Before an application is made under the provisions of paragraph (a) the party intending to make the application shall give notice in writing of the proposed application and the grounds on which it is to be made to the State Solicitor, at least 14 days before the application is made." 24 It is clear that s 93D of the Act and the relevant provisions of s 6 of the Crown Suits Act are both concerned with the grant of leave by this Court as a prerequisite to the plaintiff commencing or bringing the present action. Neither is an action in its own right. There is nothing in the terms of either provision, nor anything identified by the parties in argument, which would support the proposition advanced by the defendant, namely, that the grant of leave under the Crown Suits Act was a prerequisite to the grant of leave under the Act. The authorities to which I was directed in argument do not assist the defendant. They are concerned with the grant of leave prior to the commencement of proceedings (see Pilbara Iron Ltd & Anor v Bonotto (1994) 11 WAR 348 at 352 - 355; Newcombe v AME Properties Ltd & Anor (1995) 14 WAR 259 at 269; Crow Yougarla & Ors v State of Western Australia & Anor, unreported; SCt of WA; Library No 980387; 17 July 1998 at 45 - 47 and 49 - 51; Burke v State of Western Australia (1994) 10 SR (WA) 381 at 383 - 384; Irrera v State of Western Australia (1994) 11 SR (WA) 360 at 365; Teddy Biljabu & Ors on Behalf of the Aboriginal Group Known as Martu v State of Western Australia (1993) 11 WAR 372 at 377 - 379 and 381. See also, Dossett, (supra) per Kirby J at 442 [61]). 25 The defendant did not advance any other bases for the contention that the current action is a nullity or an abuse of process. 26 Given the nature and purpose of s 93D of the Act and s 6 of the Crown Suits Act, it is not surprising that the defendant was unable to refer me to any authority in direct support of the proposition that the grant of leave under the Crown Suits Act was a prerequisite to the grant of leave under the Act. 27 For these reasons, I have concluded that the learned Deputy Registrar did not err by granting leave under s 93D of the Act when the plaintiff had not yet obtained leave under s 6 of the Crown Suits Act. 28 I now turn to the second issue for determination in this appeal. 29 It is relatively clear from the evidence that the plaintiff was performing his normal duties and working overtime commensurate with
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that of his peers when leave was granted under s 93D of the Act by the learned Deputy Registrar. In addition, by that stage he had been promoted from the position he held on 25 December 1998. The plaintiff maintained that he was performing his duties with difficulty, but it would appear that he was nonetheless performing his full range of duties. There is no evidence of any complaint by the defendant about his ability to satisfactorily discharge his duties. 30 It is clear from the argument put to me that the underlying issue is whether the plaintiff’s working life, assuming he would continue working in his present or in a similar capacity, will likely be shortened by 10 years, with the result that he would retire from the workforce at the age of 55. No other period of time was put forward by either party. The argument proceeded on the basis that the relevant period was 10 years and not some shorter period. 31 On the evidence, a 10 year reduction in the plaintiff's working life would result in a future pecuniary loss of an amount at least equal to the prescribed amount. Indeed, it would be well in excess of that amount. Understandably and appropriately, the defendant did not contest the assertion that a reduction of 10 years in the plaintiff's working life would result in an amount in excess of the prescribed amount. 32 Therefore, the issue which I am required to decide is whether the evidence is such as to allow a determination that the plaintiff is likely to have a 10 year reduction in his working life as a result of the injuries allegedly suffered by him on 25 December 1998. As counsel for both parties pointed out to me, there was a lot of evidence before the court which is relevant, to a greater or lesser extent, to the determination of this issue. It is equally clear that some of that evidence is of much more direct relevance than other parts of it. 33 In determining whether the plaintiff has met the onus imposed on him, there are a number of guiding principles which I am required to apply. 34 In considering s 93D(5)(c), I am to treat the word: "…likely…" as conveying the notion of a substantial – ie. a real and not a remote – chance, regardless of whether it is less or more than 50 per cent (Sampson v Industrial Progress Corporation Pty Ltd, unreported; FCt SCt of WA; Library No 970058; 21 February 1997 at 4 - 5). 35 Secondly, where required to act on affidavit evidence, as is the case here, and given the nature of the application, it would usually be
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appropriate, where there is material conflict or diversions, to act on the view reasonably open on the evidence which most favours the plaintiff (Sampson, ibid., at p 5 and Lend Lease Employer Systems Ltd v Lydon, unreported; FCt SCt of WA; Library No 980088; 27 February 1998 at 5). 36 Finally, and most relevantly to this appeal in light of the defendant’s argument, in assessing the medical evidence on the matter of future pecuniary loss, it is important that I assess the expert medical opinion having regard to its comprehensibility, reasoning and the facts on which it is based (Pollock v Wellington (1996) 15 WAR 1 at 3 - 4). 37 It appears to be common ground that the time for determining future pecuniary loss is the present (Pollitt v Midland Brick Co (1995) 14 SR (WA) 251). 38 The only direct expert medical opinion on whether the plaintiff will suffer a 10 year reduction in his working life is that from Mr McWilliam, an orthopaedic surgeon, on whom the defendant relies, and Dr Warner, an occupational physician, on whom the plaintiff relies. 39 It appears that Dr Warner has seen the plaintiff only once on 19 May 2004. Following that consultation, he produced a report dated 25 May 2004. The report is annexure B to the plaintiff's affidavit sworn 7 July 2004. In that report, Dr Warner describes his diagnosis of the plaintiff's injuries as right shoulder dislocation, post-traumatic stress disorder and loss of sexual function. He expressed the opinion that the plaintiff had orthopaedic problems and that they were likely to be permanent. He confirmed that the plaintiff was capable of working 40 hours as a prison officer, but should avoid the use of his right shoulder. In that report, he expressed the opinion that the plaintiff's working life had been shortened by 10 years. 40 In a subsequent report dated 1 February 2005, Dr Warner addressed the bases for his opinion that the plaintiff's working life would be curtailed by 10 years. The report is annexure A to the plaintiff's further affidavit sworn 2 February 2005. In that report, Dr Warner stated: "• Your client has had a total shoulder reconstruction of his right shoulder including a rotator cuff repair. These are major operations and it is likely that his shoulder deterioration would accelerate rapidly.
• In his job as a prison warden he is required on occasions to be very active, physically in restraining inmates.
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41 The third and final report from Dr Warner on the subject is dated 9 February 2005. It is annexed to the affidavit of Leonard David Goldstein sworn 9 February 2005. In that report, he stated: 42 It would appear that Dr Warner's opinion about the reduction of 10 years in the plaintiff’s working life is based on the nature and extent of the surgery on the plaintiff's right shoulder and the likelihood of consequent rapid and accelerated deterioration in his shoulder, the physical requirements placed on the plaintiff in his employment, the plaintiff's post-traumatic stress disorder and its affect on his confidence in dealing with situations where he is required to physically restrain inmates and the plaintiff's age. 43 Directly opposed to Dr Warner's opinion is the opinion of Mr McWilliam. In a report dated 30 March 2001, which is annexure JW15 to the affidavit of Jacqueline Anne Woolley sworn 10 September 2004, Mr McWilliam reported on the findings of his consultation with the plaintiff on 22 March 2001. In that report, he relevantly reported that he considered the plaintiff would be able to continue with his pre-accident full-time normal duties in an unrestricted capacity. He did not believe that the plaintiff required further surgery or physical therapy (administered by others) and concluded that the plaintiff did not have any permanent residual disability relating to his neck or back. He considered that the plaintiff had a mild residual disability relating to
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his right shoulder, which he assessed as a 5 per cent loss of efficient use of the right upper limb as a whole. 44 Mr McWilliam reviewed the plaintiff on 27 June 2002 and following that review prepared a report dated 2 July 2002. The report is annexure JW16 to the same affidavit. In that report he expressed the view that he would expect the plaintiff to continue in his present employment until his normal retiring age. 45 The report from Dr Warner dated 1 February 2005 prompted a further report from Mr McWilliam dated 7 February 2005. The report is annexure LC2 to the affidavit of Lewis Chiat sworn 8 February 2005. In his report dated 7 February 2005, Mr McWilliam distinguishes between the surgery undertaken on the plaintiff’s right shoulder and the description of it by Dr Warner. Mr McWilliam described the surgery as an arthroscopic investigation and debridement of the plaintiff’s biceps tendon, plus a repair of the near-full thickness tear of the supraspinatus at arthroscopic acromioplasty. He did not regard this as a total shoulder reconstruction. He stated that to use the term total shoulder reconstruction implied that the articular surfaces of the shoulder were involved. According to Mr McWilliam, they were not. There was not even a complete full thickness tear of the supraspinatus tendon or muscle repaired. He then went on to add that the plaintiff obtained a good result with minimal ongoing symptoms in his right shoulder and expressed the view that he did not agree that the very nature of the surgery undertaken was likely to curtail the plaintiff's working life by 10 years. It is noteworthy that this was not the only reason advanced by Dr Warner for his opinion that there would be a 10 year curtailment in the plaintiff's working life. 46 Both the defendant and the plaintiff in their written submissions and in their oral arguments referred me to other parts of the evidence of both the plaintiff and various medical and related practitioners which bear upon the second issue in this appeal. In arriving at my decision, I have carefully considered the arguments, submissions and the evidence to which I was directed by counsel for the plaintiff and the defendant. In addition, I have reviewed all of the medical evidence before me. As I indicated earlier, its usefulness in determining the second issue in the appeal is variable. However, it remains the case that the only direct and opposed evidence on the issue is that of Dr Warner on the one hand and Mr McWilliam on the other hand. (Page 13)
47 Whilst I can appreciate the critical approach adopted by the defendant in respect of the evidence of Dr Warner, that evidence does in my view sufficiently, if perhaps inelegantly, describe the factual bases for his opinion. The reasoning for that opinion is also sufficiently clear. It is not comprehensive but it is comprehensible. Ultimately it may not be accepted at trial, but that does not mean that it is insufficient for present purposes. Adopting the approach that I am required to, namely, to act on the view reasonably open on the evidence which most favours the plaintiff, I am satisfied that it was and is appropriate for leave to have been granted under s 93D(5)(c). It is likely (in the required sense) that the plaintiff will have a 10 year reduction in his working life as a result of the injuries suffered by him on 25 December 1998. 48 For these reasons, I am not satisfied that the second issue should be resolved in favour of the defendant. 49 Consequently, I do not find the appeal by the defendant to have been made out on any of the grounds advanced and I would, therefore, dismiss the appeal. I will hear the parties on costs.
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