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Barry Lane
3 March, 2010  
Litigation Lotto

How many judges does it take to work out whether leave should be given for a workplace injury claim? ... Never enough … The Lotto barrel spins until “reasoning” is exhausted


imageAs I was idly moseying through Tatiara Meat Co Pty Ltd v Kelso the other day the epic battle between Clive Raleigh Evatt QC and The Mutual Life and Citizens’ Assurance Co Ltd came to mind.

That was the case where Clive Snr went after the MLC from whom, he alleged, he got some bum investment advice in relation to one of its subsidiaries, HG Palmer (Consolidated) Ltd.

Before he could get the pleadings settled, old Evatt had three trips to the NSW Court of Appeal (June 28, 1967, December 18, 1967 and April 24, 1972), one to the High Court (November 11, 1968) and one to the Privy Council (November 16, 1970).

Of the 13 judges who opined on the question of whether Clive Snr had a cause of action against MLC, seven were in favour (including the President of the Court of Appeal and the Chief Justice of the High Court) and six were against.

Unhappily for Evatt, in the final vote in the Privy Council two were in favour, but three were against.

After reading the CA’s decision in Tatiara Meat Co, it occurred to me that Tyrone Brian Kelso and his lawyers might have thought their case was a scaled-down re-run of MLC when the litigation Lotto barrel stopped spinning on February 16.

Since 2006, Kelso has been trying to obtain the necessary leave under s.134AB of the Accident Compensation Act 1985 to float a common law claim against his former employer, abattior operator Tatiara Meat Co Pty Ltd.

Whilst cutting up someone’s Sunday roast with a band saw on June 29, 2001, Kelso partially severed his right thumb.

Fortunately, the dangling digit was reattached, but it left him with chronic pain and other “serious injury” consequences.

On November 24, 2006, County Court judge John Nixon refused his application.

Kelso appealed and got up.

The Appeal Court detected “error below”, holding that the trial judge’s reasons were not up to snuff.

That’s code for: “we didn’t like the decision and we’re going to reverse it.”

Rather than decide the issue for themselves, as required by s.134AD of the Act, the appeal judges sent the case back to the County Court for rehearing.

Kelso and his lawyers could be forgiven for thinking that they might have been in with a chance after Justice of Appeal Julie Dodds-Streeton, who wrote the decision on behalf of the bench, said:

“The appellant’s difficulties with former leisure activities (which he had tried only once since the accident) and his diminished football performance (which was not clearly attributable to the injury) are consistent with the learned trial judge’s conclusion. It is not apparent, however, why the appellant’s poor pincer grip and dysfunction of the right thumb (affecting holding a pen and eating implements and a number of ‘other domestic tasks’), the hypersensitivity and lack of sensation in the working area of his right thumb, and his inability to work satisfactorily, or at all, in the meat industry, cumulatively, at least, do not constitute a very considerable consequence to a person with the qualities, work history, and education of the appellant…

The respondent pointed out that although the appellant bore the burden of establishing the relevant consequences, he led specific evidence only on his difficulty in holding pens and knives due to his poor pincer grip. Some reports, however, referred to his difficulty in doing up buttons and unspecified domestic tasks. It would appear that a number of social tasks might be affected by the same lack of pincer grip and lack of sensation in the dominant right thumb, which impeded the grasping of pens and dishes.”

Dodds-Stretton went on to say that it was required of the trial judge to provide further explanation as to why all these consequences of the injury did not amount to a serious injury.

Also, the judge did not deal with the evidence concerning the applicant’s persistent pain, to which he deposed in three successive affidavits, and on which he was cross-examined.

The case came on before HH Judge Frances Millane in the County Court and on February 3, 2009 she gave Kelso a tick.

Alas, the VWA was having none of that and appealed.

Last month Kelso was shown the door by Acting Justice of Appeal Iain Ross, who wrote the judgment for the panel (Ashley and Mandie JJA and Ross AJA).

HH blew-off a submission from Kelso’s counsel that his client was encouraged by comments from the previous appeal:

“I do not demur from the statements of principle in the earlier appeal and agree with the proposition that ‘The endurance of daily pain requiring frequent medication must, according to ordinary human experience, raise a very real prospect of a “very considerable” consequence’.

But the other observations upon which the respondent relies must be seen in context. Two things may be said in this regard.

The first is that the observations were made in the context of a challenge to the judgment subject to appeal on the basis that the trial judge had failed to deal with relevant evidence or had failed to accommodate that evidence in his reasons.

Seen in this light the observations are unexceptional and should not be seen as a qualitative evaluation of the evidence, but rather as identifying evidence, which was not dealt with or accommodated by the trial judge.

The second point to make is that the evidence before us is quite different to the evidence in the first appeal. Both parties relied on additional evidence not adduced in the earlier proceedings.

For these reasons the observations by the court in the earlier appeal provide little assistance to the respondent in the present appeal.”

In the wash-up, six judges were on Kelso’s side, and four against him.

It just depends who’s sitting down when the Lotto barrel stops spinning.