Davis v State Rail [2001] NSWCC 173

Compensation Court of New South Wales

CITATION : Davis v State Rail [2001] NSWCC 173 Kenneth F Davis PARTIES : State Rail Authority of New South Wales Rail Services Australia MATTER NUMBER(S) : 42588 of 1999 JUDGMENT OF: Armitage J at 1 CATCHWORDS: Statutes & Delegated Legislation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 31/1/01 EX TEMPORE JUDGMENT DATE : 01/31/2001

FOR APPLICANT: Mr J Kearney instructed by MRM Solicitors LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr I Roberts instructed by Sparke Helmore appeared for the first respondent. Ms J Chapman instructed by Rankin & Nathan appeared for the second respondent.

JUDGMENT: 1. On 7 July 1999 Kenneth Francis Davis filed an Application for Determination in this Court against two respondents, the State Rail Authority of New South Wales and Rail Services Australia. As against the first named respondent the application (paragraph 1) made the following allegations: (i) The nature and conditions of the applicant's employment with the first employer as a construction worker for the period 1/7/87 -30/6/96 (ii) The applicant as a consequence of his work contracted a disease, namely Dupuytren's Disease to which such work was a contributing factor. (iii) Alternatively, or in addition, the said disease was aggravated, accelerated, exacerbated and/or caused to deteriorate by the applicant's work. this being the response to the queries made by the form of application as to the date of injury, the place where it happened, what work was being done at the time of injury and how it occurred. 2. As against the second respondent the Application for Determination made the following allegations: (i) The nature and conditions of the applicant's employment with the second respondent as a construction worker for the period since 1/7/96. (ii) The applicant as a consequence of his work contracted a disease, namely Dupuytren's Disease to which such work was a contributing factor. (iii) Alternatively, or in addition, the said disease was aggravated, accelerated, exacerbated and/or caused to deteriorate by the applicant's work. 3. Against both respondents there was claimed injury to the left and right hands and various periods of total and partial incapacity in paragraph (ii) of the particulars against each respondent, and in paragraph (iii) of the particulars against each respondent the appropriate s 66 lump sums for a claim in respect of 10 per cent permanent loss of use of the left and right hands were claimed, together with s 60 expenses, a s 67 lump sum for pain and suffering and interest. 4. Today I was handed Terms of Settlement between the applicant and the second respondent, Rail Services Australia, in which the applicant was indeed to be paid the appropriate s 66 lump sums for 10 per cent permanent loss of use of the right and left hands together with a lump sum of $12,000 for s 67 pain and suffering together with various consequential orders and a costs order which need not detain me. 5. The applicant thus satisfied then sought leave to discontinue the claim set out above against the first respondent. The first respondent, opposes such leave, but only on the footing that were leave granted, the Court may possibly not have jurisdiction to entertain any costs application it may make against the applicant. I do not think that that view is in fact well-founded, as it is well established by authority that under the Workers Compensation Act 1926 an employer was free to pursue a costs application against a worker under the appropriate provisions of that statute, notwithstanding the claim had been struck out on the application of a worker, (see McClelland v I. D. Hall & Son Pty Ltd (1977) WCR 52) and I think that remains the situation under the present Act, so that jurisdiction of the Court, once enlivened by the application, is not extinguished so far as a costs application by the respondent is concerned, at least by the application being withdrawn by leave by the applicant. Be that as it may, I do not propose to deal with the applicant's application for leave to withdraw the application until I have dealt with the costs application Mr Roberts makes for the first respondent, the State Rail Authority of New South Wales. 6. That application is brought on the following basis. Mr Roberts tendered firstly Exhibit 11, two reports served on his client by the applicant's solicitors, as indicated by the fact that they were addressed to those solicitors, respectively of Associate Professor Gordon Kerridge, orthopaedic surgeon dated 10 November 1998 and Dr Harvey Stern, plastic and reconstructive surgeon, dated 10 February 1999. Mr Roberts says that on histories recorded by those doctors' reports and on the opinions they gave as to the causation of the applicant's condition, the application against his client was brought without proper justification within the meaning of that phrase in s 112(3) of the Workplace Injury Management and Workers Compensation Act 1998, or alternatively, that within s 112(4), part of the application made by the applicant, namely that part made against his client, the first respondent, was made without proper justification. 7. Mr Roberts further tendered as Exhibit 2-2 a letter dated 28 March 2000 to the applicant's solicitors written by the solicitors for the first respondent. It is sufficient to say without quoting that that letter clearly put the applicant's solicitors on notice that the 1st respondent would be seeking its costs of the application on the basis that Dr Kerridge's report established that the worker had a disease of "gradual progression", as the letter put it, and that as the first respondent was not the last employer to employ the worker in employment to the nature of which the disease was due, the application against the first respondent should be withdrawn within 28 days, otherwise, said the first respondent's solicitors, a motion would be filed to strike out the application (which apparently did not occur) and all costs incurred by the first respondent in the proceedings would be sought against the applicant, which indeed has occurred today. 8. Finally, Mr Roberts tendered as Exhibit 33 a letter from the applicant's solicitors to the State Rail Authority, the first respondent, dated 10 June 1999, seeking inter alia any periods (by implication during his employment with the first respondent) during which the applicant had been unable to work as a consequence of his injury. Part of the exhibit also was a reply from the State Rail Authority addressed to the applicant's solicitors, dated 24 June 1999, indicating that there was no actual recorded injury and that the details sought could consequently not be provided. 9. Mr Roberts develops his submission by taking me, firstly, to s 4 of the Workers Compensation Act 1987 ("The Act") which defines "injury" relevantly in this way: In this Act - "injury" - (a) means personal injury arising out of or in the course of employment; (b) includes - (i) A disease which is contracted by the worker in the course of employment and to which the employment was a contributing factor; and (ii) The aggravation, acceleration, exacerbation or deterioration of any disease, within the employment was a contributing factor in the aggravation, acceleration, exacerbation or deterioration; 10. He then takes me to s 15 of the Act which relevantly reads: (1) If an injury is a disease which is of such a nature that it was contracted by a gradual process - (a) the injury shall, for the purposes of this Act, be deemed to have happened - (i) at the time of the worker's death or incapacity; or (ii) if death or incapacity has not resulted from the injury - at the time the worker makes a claim - compensation with respect to the injury; and (b) compensation is payable by the employer who last employed the worker in employment to the nature of which the disease was due 11. He then takes me to s 16 of the Act which relevantly reads: (1) If an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease - (a) the injury shall, for the purposes of this Act, be deemed to have happened - (i) at the time of the worker's death or incapacity; or (ii) if death or incapacity has not resulted in injury - at the time the worker makes a claim for compensation in respect of the injury; and (b) compensation is payable by the employer who last employed the worker in employment that was a substantial contributing factor in the aggravation, acceleration, exacerbation or deterioration. 12. Mr Roberts then takes me to the reports of Dr Kerridge and Dr Stern and draws attention to the history and conclusion of each doctor expressed in his report. Dr Kerridge in the "history" section of his report records this: Mr Davis is a 50 year old gentleman, a constructor/worker/general hand labourer, working for the Rail Services of Australia under its various and everchanging names for the past 19 years. He was working full-time and is on full duties.