Trent Reid v Richgrove Enterprises Pty Limited

[2005] NSWSC 629

CITATION:	Trent Reid v Richgrove Enterprises Pty Limited & Ors [2005] NSWSC 629
HEARING DATE(S):	28 June 2005
JUDGMENT DATE :	30 June 2005
JURISDICTION:	Common Law Division
JUDGMENT OF:	Associate Justice Malpass at 1
DECISION:	The notice of motion is dismissed; the plaintiff is to pay the costs of the notice of motion.

CATCHWORDS:	Leave to revoke election and to commence proceedings - evidentiary deficiencies - no question of principle.
LEGISLATION CITED:	Workers Compensation Act 1987, s151A
CASES CITED:	State of New South Wales v Taylor [2001] HCA 15
PARTIES:	Trent Reid (Plaintiff) Richgrove Enterprises Pty Limited (In liquidation) (First Defendant) Elizabeth Ann Morgan (Second Defendant) Darren John Morgan (Third Defendant) Scott Morgan (Fourth Defendant)
FILE NUMBER(S):	SC 20935/01
COUNSEL:	Mr K Pryde (Plaintiff) Mr G Hickey (First Defendant)
SOLICITORS:	Keddies (Plaintiff) Sparke Helmore (First Defendant)

LOWER COURT JURISDICTION:

- 8 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Associate Justice Malpass

30 June 2005

20935 of 2001 Trent Reid v Richgrove Enterprises Pty Limited & Ors

JUDGMENT

1 His Honour: On 15 July 1997, the plaintiff (who was born on 25 July 1976) suffered personal injury. At the time, he was in the employment of the defendant as a roof tiler. He slipped whilst working on the roof of a house. He suffered lacerations to his right hand and arm.

2 On 18 July 1997, the plaintiff instructed the firm of Marsdens to act on his behalf. On 13 April 1999, he instructed Marsdens to accept an offer of $22,000 by way of permanent loss compensation. Subsequently, he accepted payment of that sum (perhaps in or about July/July of that year).

3 The consequence of that action was that he had either made or was taken to have made an election pursuant to s151A of the Workers Compensation Act 1987 (the Act).

4 It is common ground that, for present purposes, the court is concerned with the Act as it was prior to 27 November 2001.

5 The plaintiff ceased to instruct Marsdens. On 3 November 2000, he instructed Teakle Ormsby Conn. Later, he ceased to instruct that firm. On 5 September 2001, he instructed G H Healey & Co.

6 On 22 November 2001, the plaintiff filed in this court both a statement of claim to recover damages (the proceedings) and a notice of motion (the notice of motion).

7 The notice of motion contains a number of prayers for relief. For present purposes, the court is concerned with two applications. Firstly, an application for leave to revoke the election to claim permanent loss compensation. This is made pursuant to s151A of the Act. Secondly, an application for leave to commence the proceedings. This is made pursuant to s151D of the Act.

8 In support of the notice of motion, the plaintiff has relied on a number of affidavits. One was sworn by the plaintiff himself. Two of the affidavits have been sworn by Majed Issa. A further affidavit has been sworn by Stephen Morgan.

9 Both Messrs Issa and Morgan are employees of the firm Keddies. The firm took over the conduct of the proceedings on 2 June 2003.

10 The defendant has not relied on any affidavit material. It did cross-examine the plaintiff.

11 Subsections (4) and (5) of s151A are as follows:-

(4) An election is irrevocable, except that an election to claim permanent loss compensation may be revoked with the leave of the court given in accordance with this section.
(5) If
(a) a person elects to claim permanent loss compensation in respect of an injury, and
(b) after the election is made, the injury causes a further material deterioration in the persons medical condition that, had it existed at the time of the election, would have entitled the person to additional permanent loss compensation, and
(c) at the time of the election, there was no reasonable cause to believe that the further deterioration would occur,
the person may, with the leave of the court and on such terms (if any) as the court thinks fit, revoke the election and commence proceedings in the court for the recovery of damages in respect of the injury.

12 The provisions contained in (b) and (c) of subsection (5) impose threshold requirements which must be first satisfied by the plaintiff. If the plaintiff discharges the onus in relation to these requirements, the court may, inter alia, then grant leave to revoke the election.

13 The court has a discretionary power to grant such leave. It is exercised having regard to the relevant circumstances of the particular case before the court and so that the interests of justice is best served between the parties. The plaintiff bears the onus of satisfying the court that the discretionary power should be exercised in his favour.

14 In State of New South Wales v Taylor [2001] HCA 15, the majority said:-

12 The form of the subordinate clause in s151A(5)(c) is explained by the fact that it is for a court to determine whether "there was no reasonable cause to believe that the further deterioration would occur". That fact, together with the omission of any reference to the injured person's belief, suggests that the court examines all relevant evidence concerning the medical condition at the time of the election and all relevant evidence that throws light on the prognosis of the condition at that time. If the court holds that the applicant has failed to prove that there was "no reasonable cause to believe that the further deterioration would occur", it must refuse the application. If it holds that the applicant has proved that there was no reasonable cause for such a belief, it may, but not must, give the applicant leave to revoke the election.
13 Hence it is the court's view of all the evidence and not the injured person's belief, reasonable or otherwise, that is decisive. On this view, the test for the court is: given the medical condition of the applicant at the time of the election and the expert opinions as to its prognosis at that time, would it be unreasonable for a person to believe that the condition would further deteriorate as it had? The applicant for leave must prove a negative. He or she must show that it would be unreasonable for a person to hold that belief. The applicant will prima facie discharge that onus by tendering evidence indicating that such a belief could not be reasonably held. If a prima facie case is established, the employer has the evidentiary burden of showing that there exists another body of evidence that indicates a contrary conclusion. Ultimately, it is for the court to determine whether "there was no reasonable cause to believe that the further deterioration would occur" in accordance with the test that we have formulated.
14 In determining the issue of "no reasonable cause to believe", the court does not determine whether, as a matter of probability, there was cause to believe that the further deterioration would occur. To approach the section in that way is to invert the negative proposition that it contains. On the evidence, two opposite beliefs may have been reasonably open as to whether the further deterioration would occur. If there was, the application for revocation fails. If on the whole of the evidence, whatever its source or sources, the court concludes that it would not be unreasonable to believe that the further deterioration would occur, the applicant fails. It is irrelevant that, on the same body of evidence, it would also be reasonable to believe that the further deterioration would not occur. In a case where the evidence admits of two reasonable, but opposing, conclusions, the applicant has failed to show that there was no reasonable cause to believe that the further deterioration would occur.

15 The plaintiff primarily looks to three medical reports from specialists as evidencing the position as at the time of the election.

16 One of the reports was prepared by Dr Lyons and is dated 26 November 1998. He was a treating surgeon. He carried out a surgical exploration and re-repair of the plaintiff’s ulnar nerve. He observed that the plaintiff’s post-operative recovery had been very satisfactory.

17 He expressed the following opinion:-

Mr Trent Reid sustained an injury whilst allegedly at work on the 15.7.1997. The history given and the subsequent progress are documented within the corpus of this report. At the present time the patient demonstrates marked improvement of ulnar nerve function secondary to the re-exploration on the 11.2.1998.
At the present time the patient has returned to work on a restricted activities programme. He is anticipated to return to normal activities in 3-6 months.
In view of the persistent abnormalities noted, I would consider that Mr Trent Reid has permanent efficient loss of right hand function in the order of 20%.

18 The second report was provided by Dr Young (who had been qualified by the defendant’s insurer and is dated 22 October 1998. The report contains the following:-

I consider it likely that Mr Reid will have some further improvement in his right wrist but he will continue to have evidence of a severe ulnar nerve injury.
… … …
In the meantime Mr Reid will remain at work but he will have some difficulty performing his normal duties with his right hand.

19 The third report was provided by Dr Harrison and is dated 11 March 1999. The report contains the following:-

There are minor prospects for improvement with time but he is a determined young man who has got back to work again and is managing again in his specialised trade despite the above disability.

20 Dr Harrison opined a 20 per cent loss of permanent use. He saw little prospect of significant further improvement.

21 In seeking to demonstrate, inter alia, that there has been a further material deterioration in his medical condition, the plaintiff relied primarily on his own evidence together with a report and the notes of his general practitioner, Dr Lau. There was no further evidence from any of the three specialists.

22 The affidavit evidence does not contain any reference to the plaintiff seeing Dr Lyons subsequent to the making of the election. However, his cross-examination revealed that he had seen Dr Lyons since that time. The plaintiff gave evidence that Dr Lyons had told him that nothing could be done to improve his condition. This evidence seems to accord with other evidence given by him as to his understanding of the medical advice that he has received.

23 The affidavit sworn by the plaintiff is a relatively short document. It deposes, inter alia, that his right arm and hand have progressively worsened since 13 April 1999. Paragraphs 16, 17 and 21 of the affidavit provide some detail as to what is said to be the deterioration in his medical condition. He began to experience, inter alia, more pain in his right arm and hand and that his hand was getting weaker. The evidence as to work performed by him since the election is far from clear. It appears that he worked for part of the period between April 1999 and May 2000 and that he did so “on and off”. He deposed that he could not undertake the heavier aspects of the job. He could do light duties and he was experiencing difficulty with the lighter aspect of the job that he could previously do. He also deposed that he was unable to undertake labouring duties.

24 Counsel for the plaintiff has invited the attention of the court to various entries which appear in the progress notes of Dr Lau (including notes which conclude with entries made in May 2000 recording that the plaintiff was sacked and couldn’t do heavy work).

25 Dr Lau also prepared a report dated 24 June 2005. It records a history and material from the notes (which appears under the heading “Progress”).

26 The report concludes with the following:-

His prognosis is guarded. It is possible that he would have ongoing pain and weakness in his right hand. He is not fit to return to his pre-injury duties as a roof tiler. He may require retraining for less strenuous duties.

27 In my view, when regard is had to the evidence offered by the plaintiff, the shortcomings are obvious. Despite the long history had by the notice of motion, the deficiencies have remained. I consider that the plaintiff has fallen well short of satisfying either of the threshold requirements. Further, it seems to me that even if he had been able to overcome these obstacles, he would have failed to satisfy the court that the discretionary power should have been exercised in his favour.

28 The focus of submissions made by counsel was on the application for revocation. In the light of what has been earlier said, it is no longer necessary to determine the application for leave pursuant to s151D of the Act. However, it may be helpful if I add that this application also had its problems.

29 Under that provision, no threshold requirements need to be satisfied. Like the discretionary power conferred by s151A of the Act, there are no expressed criteria. The exercise of the discretionary process is similar

30 In his cross-examination, the plaintiff made various concessions. He knew from the time of his injury that the defendant was at fault (because of lack of safety procedures). He knew that he had suffered a serious injury. He knew that he couldn’t work as well as before the injury.

31 The plaintiff saw Teakle Ormsby Conn because his condition had been worsening and he wanted to get further compensation.

32 He became unhappy with the manner in which his file was being handled by that firm. This caused him to attend on G H Healey & Co on 5 September 2001. In his affidavit, the plaintiff deposes to the following:-

This was the first occasion on which I was advised of my common law rights against the Defendant. Prior to that date, I thought that I only had workers compensation rights.

33 It has not been said that the plaintiff does not have a viable cause of action. It is not said that delay has caused the defendant to suffer actual prejudice. There is presumptive prejudice, but little has been said concerning this matter. There has been significant delay and what is offered to explain the delay falls well short of being satisfactory. It seems to me that these two matters are of considerable weight when regard is had to the questions of the exercise of discretionary power.

34 In my view, the plaintiff has failed to discharge the onus of demonstrating any entitlement to relief. The notice of motion is dismissed. The plaintiff is to pay the costs of the notice of motion.

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