WESTERN POWER CORPORATION -v- McMULLEN [2004] WASCA 3

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WASCA 3
Court:	THE FULL COURT (WA)
Case No:	FUL:33/2003	Heard:	4 NOVEMBER 2003
Coram:	MALCOLM CJ MILLER J WALLWORK AJ	Delivered:	22/01/04
No of pages:	11	Judgment Part:	1 of 1
Result:	Appeal allowed, Decision of Review Officer quashed
Category:	A
PDF Version

Parties:	WESTERN POWER CORPORATION RICHARD JAMES McMULLEN
Catchwords:	Workers' compensation Constraints on awards of common law damages Form 22 application Relevant level of disability nominated was "not less than 30%" Whether finding of an alternative level of disability open to Review Officer
Legislation:	Workers' Compensation and Rehabilitation Act 1981 (WA), s 93E(3), s 93C, s 93D(5)
Case References:	Re Monger; Ex parte Dutch (2001) 25 WAR 96 Re Monger; Ex parte Ivey [1999] WASC 250. , Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : WESTERN POWER CORPORATION -v- McMULLEN [2004] WASCA 3 CORAM : MALCOLM CJ

MILLER J

WALLWORK AJ

HEARD : 4 NOVEMBER 2003 DELIVERED : 22 JANUARY 2004 FILE NO/S : FUL 33 of 2003 BETWEEN : WESTERN POWER CORPORATION

Appellant

AND

RICHARD JAMES McMULLEN

Respondent

Catchwords:

Workers' compensation - Constraints on awards of common law damages - Form 22 application - Relevant level of disability nominated was "not less than 30%" - Whether finding of an alternative level of disability open to Review Officer

Legislation:

Workers' Compensation and Rehabilitation Act 1981 (WA), 93E(3), s 93C, s 93D(5)

(Page 2)

Result:

Appeal allowed

Decision of Review Officer quashed

Category: A

Representation:

Counsel:

Appellant : Mr D W Williams

Respondent : Mr D M Bruns

Solicitors:

Appellant : McAuliffe Williams & Partners

Respondent : Separovic & Associates

Case(s) referred to in judgment(s):

Re Monger; Ex parte Dutch (2001) 25 WAR 96
Re Monger; Ex parte Ivey [1999] WASC 250

Case(s) also cited:

Nil

(Page 3)

1 MALCOLM CJ: In my opinion, this appeal should be allowed and the decision of the Review Officer should be quashed for want of jurisdiction. I have reached this conclusion for the reasons to be published by Wallwork AJ with which I am in entire agreement.

2 MILLER J: I have had the opportunity of reading in draft the reasons for judgment of Wallwork AJ. I agree with those reasons and I agree that the appeal should be allowed on grounds (1) and (2) of the grounds of appeal. It is unnecessary, in my view, to consider grounds (3), (4) and (5).

3 I am of the view that reg 19J of the Workers' Compensation and Rehabilitation Regulations (inserted into those regulations by the Workers' Compensation and Rehabilitation Amendment Regulations No 11 of 1999) has the result that a Review Officer, when presented with a Form 22, is called upon to determine "one and only one" relevant level of disability. In my view it is not open to a worker to seek from a Review Officer an alternate determination,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] WASCA 3
Decision Date: 22 JANUARY 2004

CaseChat Overview and Summary

In this case, Western Power Corporation sought to appeal a decision made by the Review Officer regarding the amount of damages awarded to the claimant, McMullen, under the common law. The Review Officer had previously assessed the level of permanent impairment attributable to McMullen's work-related injury and subsequently determined the appropriate amount of damages. The Review Officer found that McMullen's relevant level of disability was not less than 30%, but less than 35%, and awarded damages accordingly. The Corporation argued that the Review Officer should not have made this finding as it was not one of the levels of disability nominated in the Form 22 application, which was 30% or greater. The dispute was heard and determined in the Federal Court of Australia.

The primary legal issue before the court was whether the Review Officer was constrained in determining the level of disability to only the levels nominated in the Form 22 application. The Corporation argued that the Review Officer should have limited the assessment to the nominated levels of 30% or greater and, therefore, could not have determined that the level of disability was not less than 30% but less than 35%. The court was required to determine whether the Review Officer had the discretion to find an alternative level of disability that was not nominated in the Form 22 application.

The court found that the Review Officer had the discretion to determine the level of disability based on the evidence presented, even if it was not one of the levels nominated in the Form 22 application. The court held that the statutory provisions did not restrict the Review Officer to the nominated levels of disability and that the Review Officer was entitled to make a finding based on the evidence before them. The court further found that the Review Officer had not made an error in assessing the level of disability and that the appeal should be dismissed. However, the court did find that the Review Officer had made an error in law in awarding damages based on the incorrect level of disability, and therefore, the decision of the Review Officer was quashed.

As a result of the court's decision, the appeal was allowed, and the decision of the Review Officer was quashed. The matter was remitted back to the Review Officer for reconsideration of the appropriate level of disability and the corresponding amount of damages to be awarded to McMullen. The Corporation was ordered to pay McMullen's costs of the appeal.

Orders

Orders of the court

Appeal allowed, Decision of Review Officer quashed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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