| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : TYLER -v- RYAD ENGINEERING PTY LTD [2004] WADC 209 CORAM : CHANEY DCJ HEARD : 1 SEPTEMBER 2004 DELIVERED : Delivered Extemporaneously on 1 SEPTEMBER 2004 typed from tape and edited by Trial Judge FILE NO/S : CIVO 76 of 2004
MATTER : IN THE MATTER OF s 93D(4) of the Workers' Compensation and Rehabilitation Act 19811996 BETWEEN : SCOTT WALTER TYLER Plaintiff
AND
RYAD ENGINEERING PTY LTD
Defendant
Catchwords: Negligence - Claim against employer - Leave to commence proceedings - No application prior to repeal of former provision - Preservation of right to seek leave
Legislation: Workers' Compensation and Rehabilitation Act 19811996, s 93D
Interpretation Act 1984 (WA)
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Result:
Leave to commence proceedings granted Representation:
Counsel:
Plaintiff : Mr T P Heard
Defendant : Mr M Campbell
Solicitors:
Plaintiff : Bradford & Co
Defendant : Greenland Brooksby
Case(s) referred to in judgment(s):
Dossett v TKJ Nominees Pty Ltd (2003) 202 ALR 428
Duca v Aherns Holdings Pty Ltd [2004] WADC 85
Hanna-Pauley v David Jones Ltd [2004] WADC 69
Henderson v Kcut Pty Ltd [2004] WADC 13
Case(s) also cited:
Toolan v Metropolitan (Perth) Passenger Transport Trust (2001) 25 WAR 1
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1 CHANEY DCJ: This is an application for leave pursuant to section 93D of the Workers' Compensation and Rehabilitation Act 1981 in the form which it took prior to the amendments which came into effect on 5 October 1999. In this case the application for leave was made by originating summons filed on 8 April 2004. The injury to the plaintiff occurred on 8 December 1998. As at the date that the amendments to the Workers' Compensation and Rehabilitation Act came into force, no application for leave had been commenced or determined.
2 There have been at least three cases, and possibly more, in this Court dealing with the consequences of the decision of the High Court in Dossett v TKJ Nominees Pty Ltd (2003) 202 ALR 428. 3 That case concerned an injured worker who had made an application for leave prior to the amendments coming into force but whose application had not been dealt with by the court and therefore no leave had been given prior to the date the amendments came into force. 4 The High Court in Dossett determined that there was an accrued right enjoyed by the plaintiff or the putative plaintiff in that action by virtue of the provisions of the Interpretation Act 1984 which was not lost by the amendment to the workers' compensation legislation, notwithstanding the transitional provisions contained in the amending Act. 5 Since that time decisions have been made by Macknay J in Henderson v Kcut Pty Ltd [2004] WADC 13 and then by Williams DCJ in Hanna-Pauley v David Jones Ltd[2004] WADC 69 and then I followed the decisions in those cases myself in Duca v Aherns Holdings Pty Ltd [2004] WADC 85 in May of this year. 6 In each of those decisions the court decided that the accrued rights of an injured person who had suffered injury prior to October 1999 but had not yet applied for and thus not yet obtained leave remained, and it was open to bring an application for leave within the six-year limitation period from the time of the accident. In this case the respondent submits that it is not open to grant leave in circumstances such as this where no application was on foot prior to the amendment to the act and submits that Dossett is not authority for the contrary proposition. 7 The submissions made in this case are to the same effect as the submissions made to me in Duca v Aherns Pty Ltd (supra). It is not necessary for me to repeat the reasons which led me to reject those submissions but I adopt the reasoning which I related in the decision in Duca in rejecting the defendant's submission on that point. That then
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leaves open the question of whether or not the plaintiff satisfies the requirements for leave under s 93D of the Act as it stood prior to its amendment. 8 The plaintiff seeks to base the entitlement to leave on subs (5)(c) of s 93D as it stood, namely that the plaintiff is "likely to have a future pecuniary loss resulting from the disability of an amount that is at least equal to the prescribed amount." In this case the plaintiff has adduced evidence by way of his affidavit of 1 April 2004 which indicates that as a boilermaker he would have expected, had he continued to be able to work in that capacity, to earn a gross yearly wage of between $46,865 - which equates to a weekly salary range of $900 gross to $1,250 gross giving a net range of $689 to $897 dollars. 9 The plaintiff deposes to the fact that he has been told by his orthopaedic surgeon, Mr Peter Woodland, that he will require ongoing medical assistance. He has been told that he will require ongoing analgesic and anti-inflammatory medications, occasional physiotherapy, occasional facet joint injections and facet joint rhizotomies and general practitioner assessment from time to time as well as assessment by an orthopaedic specialist every year or two, and he makes an assessment of the likely cost of $20 per week for the rest of his life. 10 Appended to his affidavit are a number of reports of Mr Woodland which indicate that he has held a view since quite soon after the injury was suffered in 1998 that significant disability has been suffered by Mr Tyler. He assesses that disability at 50 per cent of the efficient use of the spine which correlates to approximately 20 per cent whole body disability. Significantly Mr Woodland has said, throughout the time that he has been treating the plaintiff until most recently in November 2002, that he does not believe that the plaintiff will be fit to return to his pre-accident employment at all. 11 The plaintiff deposes to the fact that he has, notwithstanding his injury, continued to work within the limits of his capacity. He completed his apprenticeship as a boilermaker but was unable to actually perform work as a boilermaker and was employed after his accident mainly in more an administrative position. Eventually that employment was terminated and he has been working, it seems, since October 2002, as a patio installer earning $340 net per week. On the basis of what he would have earned as a boilermaker compared to what he is earning as a patio installer, it is clear that he would satisfy the requirement for a future loss
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of income in excess of the prescribed amount such as to entitle him to leave. 12 The defendant opposes the application not only on the basis that it is said as a matter of law that leave is not open but also on the basis of the question as to whether or not the threshold is satisfied. The defendant has adduced evidence of a labour market analysis report prepared by a consultant as to the general duties of patio installers and the general level of average weekly earnings earned by those who describe themselves as patio installers, and also an assessment of the general duties of a boilermaker-welder and the general average earnings of people who so describe themselves. 13 Those figures I accept, if they represented the previous and existing working capacity of the plaintiff respectively, would indicate a future loss of earnings which would fall about $35,000-$40,000 short of the prescribed amount. The difficulty I have, given the tests which are to be applied in applications of this nature which are set out in the plaintiff's outline of submissions and not disputed by the defendant, is that the plaintiff's evidence is as to what he is actually earning now as against what he could actually have earned as a boilermaker-welder. 14 As to the income of boilermakers-welders, there does not seem to be much dispute or much disparity between the plaintiff's assertion and the defendant's evidence. The position with the patio installer, however, is that the plaintiff does say he is working within the limitations of his physical constraints. I do not think it is open to me reasonably on this application to assume that he has a capacity to undertake the heavy physical work which is referred to in the labour market analysis report, with the attendant income that is earned by that work, on the basis of the job which the plaintiff is now doing and which his specialist has, in the past and fairly consistently, indicated he is capable of doing. 15 In other words, I am not satisfied that there is a reasonable basis for saying that the plaintiff has the capacity to earn income of a patio installer of that generic nature referred to in the labour market analysis report. 16 Given the approach which is to be taken in viewing the evidence on applications of this nature it seems to me that the plaintiff has established a basis which satisfies the requirement that it is likely his future loss will exceed the prescribed amount and for that reason I propose to grant leave.
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