Baker v Australia Meat Holdings Pty Ltd [2002] QSC 16

SUPREME COURT OF QUEENSLAND CITATION: Baker v. Australia Meat Holdings P/L [2002] QSC 016 PARTIES: TIMOTHY RICHARD BAKER (PLAINTIFF) V. AUSTRALIA MEAT HOLDINGS PROPRIETARY LIMITED ACN 124 567 890 (DEFENDANT) FILE NO/S: S 316/01 DIVISION: Trial PROCEEDING: Application ORIGINATING COURT: SUPREME COURT DELIVERED ON: 5 February 2002 DELIVERED AT: TOWNSVILLE HEARING DATE: 1 February 2002 JUDGES: CULLINANE J. ORDER: The application is dismissed with costs to be assessed CATCHWORDS: Procedure-Miscellaneous Procedural Matters-Application to strike out paragraphs to determine summary issue where trial is inevitable-Where possibility of appeal may delay further action. COUNSEL: A. Moon for the Plaintiff B. M. Grant-Taylor for the Defendant SOLICITORS: Connolly Suthers Lawyers for the Defendant Thompson Hannan for the Defendant [1] The Defendant seeks a number of orders. Whilst they are sought in the alternative, they all involve the same issue which the Defendant seeks to have determined separately and prior to the trial. The issue can be summarised as follows: whether a notice of assessment by WorkCover Queensland that the Plaintiff has -- 1 of 3 -- 2 suffered a nil percent of WRI (work related impairment) precludes the Plaintiff from claiming damages for future economic loss or impairment of earning capacity. [2] The Defendant contends that it does and seeks to have those parts of the statement of claim in which such claims are advanced struck out. [3] There is no dispute about the relevant factual matters. The notice of assessment concerned was issued on 10th November 1998. It is an exhibit to an affidavit of Amanda Charmaine Karpeles filed on behalf of the Defendant. This affidavit sets out the history of the matter. [4] The relevant legislation is the WorkCover Queensland Act of 1996. [5] Work related impairment (WRI) is defined in s.41 of the Act in the following terms: “41.(1) A worker’s “work related impairment” from injury is the worker’s entitlement to lump sum compensation under section 19811 expressed as a percentage of statutory maximum compensation calculated under section 201.12” [6] As will be seen the definition is a somewhat curious one in that it provides that an impairment resulting from the injury is in fact an entitlement to lump sum compensation. [7] Section 317 of the Act provides as follows: “317. A court may award damages for future economic loss or damages for diminution of future earning capacity only if the claimant satisfies the court that, because of the percentage of WRI resulting from the injury sustained, three is at least a 51% likelihood that the claimant will sustain the future economic loss or diminution of future earning capacity". [8] It is the Defendant’s contention that the scheme of the Act, reflected especially in those provisions dealing with entitlement of compensation for permanent impairment (part 9 of chapter 3) and access to damages (chapter 5) compel the conclusion that the reference in s.317 (the percentage of WRI resulting from injuries sustained) is the assessment of WRI contained in the notice of assessment given by WorkCover Queensland pursuant to s.203 of the Act. [9] Section 317 would seem, clearly enough, to deny damages under the head specified for any loss of a chance assessed at less than 51%. It is the Defendant’s case that a nil percentage WRI must necessarily preclude the establishment of a 51% likelihood that the Plaintiff will suffer future economic loss or diminution of earning capacity. [10] The Defendant’s analysis of the legislation is contested by the Plaintiff who contends that WorkCover Queensland has no power to issue a notice of assessment for nil percentage WRI and further that the court is not necessarily bound by the percentage of WRI contained in the notice of WorkCover Queensland pursuant to s.203 when s.317 falls for consideration. -- 2 of 3 -- 3 [11] I was informed from the Bar table that it is understood that the issues have not been the subject of any judgment of any court in Queensland. [12] I was referred to a judgment of His Honour Mr Justice Muir in Flinn v The Maryborough Sugar Factory Limited (2001) QSC170. [13] The issue which arose in that matter was the same as that which arises here. It came before the court upon an application to strike out those parts of the Plaintiff’s pleading in which a claim for future economic loss or impairment of earning capacity was advanced. An assessment had been issued quantifying the Plaintiff’s work related injury at 0 percent. [14] The Plaintiff disputed the construction advanced by the Defendant employer in that case (the same argument as advanced here) and it seems also advanced a claim based upon estoppel. [15] His Honour took the view that it was undesirable that the issue be determined on such an application. One of the grounds upon which he did so was that even if the application succeeded, that is, the question of construction was resolved in favour of the Defendant, the action would still proceed to trial on the estoppel point. [16] He also referred to the possible delays associated with any appeal from his ruling and the extra costs which would be incurred if this occurred rather than if the matter proceeded to trial where all issues including the issue of construction would be determined. [17] Counsel for the Applicant here suggested that this was not really a consideration because if the court refused the application the Plaintiff could appeal in any case. This would of course be an appeal against a discretionary judgment and in circumstances where the refusal of the application would not in any way prevent the Defendant from advancing such arguments in the course of a trial where all matters of fact and the law would be resolved. I think that if the application were determined in the Defendant’s favour an appeal would be more likely than if it was dismissed. [18] I should add that it was accepted that if the application succeeded, the Plaintiff’s action claiming damages under other heads would still remain to be determined. [19] The determination of issues separately in the way sought here is undoubtedly an important and valuable power which the court has but it must be exercised with some care as the courts have warned in a number of cases. It has the capacity to produce both increased expense and delay in litigation. See Sumner v William Henderson and Sons Ltd (1963) 1WLR 823 and Tilling v Whiteman (1980) AC 1. [20] In the circumstances of this case I propose to take a similar course to that taken by Muir J in Flinn’s case. I think that the interests of justice are best served if the issues are dealt with in the course of the trial of the action together with all of the other issues that arise between the parties. [21] Accordingly the application is dismissed with costs to be assessed. -- 3 of 3 --