Yates v Electricity Commission of New South Wales

[1992] HCATrans 176

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S161 of 1991

B e t w e e n -

LYNET~E KAY YATES

Applicant

and

ELECTRICITY COMMISSION OF

NEW SOUTH WALES

Respondent

Application for special

leave to appeal

MASON CJ
TOOHEY J

MCHUGH J

Yates 1 5/6/92

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 5 JUNE 1992, AT 11.21 AM

Copyright in the High Court of Australia

MR A.F. PUCKERIOGE, QC: If the Cow:t pleases, I appear with

my learned friend, MR P.M. SEERY, for the

applicant. (instructed by Maurice May & Co)

MR B.J. GROSS, QC:  May it please the Court, I appear with

my learned friend, MR M. CLARIDGE, for the

respondent. (instructed by Solicitor for the

Electricity Commission of New South Wales)

MR PUCKERIDGE:  Your Honours, the matters raised in

paragraph 20 of the affidavit in support, page 49 of the application book, namely the fact that the

respondent indicated an intention to file a further

defence but did not ultimately file such a defence

were not raised in the Court of Appeal.

TOOHEY J: No, there is certainly nothing in the judgments

which would suggest they were.

MR PUCKERIDGE: That is correct, Your Honour. Affidavits

have been prepared as to why that was not so, but

on the assumption that that would be considered by

the Court to be a matter more properly to be raised

before the Court of Appeal, rather than before this

Court on a special leave application, the matter rest on the special leave application on the basis

that it should not be assumed that the parties did

not have knowledge of the relevant amending

legislation which, at the time of the hearing on

that was legislation which restored in a limited way common law rights so far as the applicant was

6 February 1990 before His Honour

concerned and also gave some benefit to the
defendant, and the respondent to this application,
in that the position still remain that the
applicant could have had a verdict in his favour on

the basis of a cause of action or an injury and

damage prior to 30 June 1987.

TOOHEY J:  Mr Puckeridge, I am a bit troubled by the notion

that we should not assume that the parties were not

aware of the amending legislation. We really

should make no assumption one way or another,

should we?

MR PUCKERIDGE:  We could not put anything one way or the

other in that regard.

TOOHEY J: Once we start to make assumptions about

knowledge, all sorts of considerations creep in

that are not evident from the decision of the Court

of Appeal or from the application for special

leave.

Yates	5/6/92
MR PUCKERIDGE:	Yes, Your Honour. We would agree that once

this question of knowledge is concerned, we get

back to the problem as referred to by

Mr Justice Handley in that the matter should run

according to law and the law at that stage, we

would indicate, was certainly the relevant 1989

amendment law. The fact of the matter is that the

defendant did not seek at that stage, at the

commencement of the hearing, to allege or claim any

benefit under the amending legislation, which would

points as referred to in the judgment of	be allowable to him, in relation to threshold or not he had been significantly impaired, his life
had been significantly impaired or a case of a
serious nature.

The defendant did not seek to amend any

defence in that regard. We would simply put,

Your Honour, that as the law was and as the judgment of His Honour Judge Lloyd-Jones was made,

it was open to him to find in favour of the

applicant on the basis of injury and damage prior

to 30 June 1987.

TOOHEY J: But the pleadings stand as an obstacle to that,

do they not, the statement of claim?

MR PUCKERIDGE:  The statement of claim does present some

obstacle in relation to the date referred to as

being on 8 September 1987.

MASON CJ: It is a real obstacle, is it not?

MR PUCKERIDGE: Yes, Your Honour, except that the evidence

in this regard would clearly indicate that there

could have been damage prior thereto and the

judgment of His Honour Judge Lloyd-Jones at page 6,

15 to 25, would indicate that:

She began to get pins and needles within the

first few days in the right hand and then

within a few weeks she began to suffer pain in

the right elbow and stiffness in the back and the neck and with the right shoulder. So the

whole of the area of her present problem

started to become manifested within the first

few weeks of her employment on the stocktake. All we could put to Your Honour in that regard, if that was the evidence, it would again have been open to the defendant at that stage to put matters

to His Honour to indicate that the real damage

occurred on 8 September 1987 and again raise the

defence.

Yates 5/6/92

TOOHEY J: But we cannot really look and make an assessment

for ourselves of when the cause of action was

likely to arise, given the pleading and the way in

which the matter has been conducted ever since. action in respect of which the applicant recovered

damages was a post-30 June 1987 cause of action?

MR PUCKERIDGE: Yes, Your Honour.

TOOHEY J:  I mean, if it was not, then none of this would

have happened.

MR PUCKERIDGE:	That is correct, Your Honour. We cannot put anything more to you in that regard because
certainly the pleading does raise a considerable
problem in that regard and the only matter which we
can point the Court to is the actual findings in
the judgment of His Honour Judge Lloyd-Jones in
that regard - - -
TOOHEY J:	But once you start as a first step with the cause of action which arose post-30 June 1987, then you
get caught up in this morass of legislative
amendment, but is it possible to say that what the the date at which the cause of action arose - or
rather the fact that it arose post-30 June 1987 -
and the impact on that of the legislation that followed?

MR PUCKERIDGE: Certainly, Your Honour, the result as

determined by the Court of Appeal in granting a new

trial will allow those issues to be canvassed in

this regard.

TOOHEY J: Perhaps. I mean that assumes that the pleadings

could now be amended to set up a cause of action

arising earlier than 30 June.

MR PUCKERIDGE: There is one other matter - my learned

junior has indicated, although it does not appear
in the appeal book, he certainly indicated that the

case was opened on the basis that the cause of

action arose as a result of the system of work

implanted in March of 1987, that is that the

applicant complained of symptoms and assaults in

relation to the overuse syndrome prior to

30 June 1987, but we again come back - - -

TOOHEY J: But that is another - you must make your own

assessment of that. This Court cannot really buy

into that aspect of it.

MR PUCKERIDGE:  That is correct, Your Honour. We cannot put

anything further.

Yates	5/6/92
TOOHEY J:	As a result of the decision of the Court of

Appeal you are protected on the finding of

negligence; you are protected on the costs of the

earlier proceedings and of the appeal to the Court

of Appeal.

MR PUCKERIDGE:  The only then question of importance in

relation to the matter is on the basis that the

matter should have proceeded according to the law
as at that stage which was the 1989 amendment to

the Workers Compensation Act, and that matter not

having been brought by the legal representatives to

the attention of the court, what is the importance

so far as the court itself is concerned found in

that position, because under the Amendment Act,

there may well, had the court determined that there

was damages resulting both pre and post 1 July 1987

under the Act, there may have to be even some

apportionment under one of the sections.

TOOHEY J: But that again only points to the desirability of

the whole matter going back.

MR PUCKERIDGE:  We cannot put anything further to the Court

in this regard, Your Honour.

MASON CJ: Thank you, Mr Puckeridge.

The Court need not trouble you, Mr Gross.

Having regard to the fact that the applicant's case

was pleaded and fought on the footing that the

cause of action arose after 30 June 1987, we are

not persuaded that the decision of the Court of

Appeal is attended with sufficient doubt to justify

the grant of special leave to appeal.

The application is therefore refused.

MR GROSS:	We ask for costs, if Your Honour pleases.
MASON CJ:	You do not oppose costs? The application is

refused with costs.

AT 11.34 AM THE MATTER WAS ADJOURNED SINE DIE

Yates 5/6/92