Ainsworth v Criminal Justice Commission

Ainsworth v Criminal Justice Commission - [2003] WASC 154 - WASC 2003 case summary — Zoe

[25]

"The applicant suffers from lung cancer, pleural disease and asbestosis. He believes that this was caused by his exposure to asbestos while employed as a truck driver in the 1950's by a company known as Manford Property Services Pty Ltd ('Manford Property'). He wants to sue Manford Property for damages. However, by s 93E(3) of the Act, he can only be awarded damages at common law if certain conditions are met. One of these (being the only relevant one for present purposes) is that he has a 'significant disability'. He will, by virtue of s 93E(4), have a significant disability if the degree of disability suffered by him is agreed or determined to be not less than 16 per cent and the agreement or determination is recorded in accordance with the Workers' Compensation and Rehabilitation Regulations (1982) ('the Regulations').

The applicant contends that his afflictions are such that his degree of disability is not less than 16 per cent. However Manford Property disputes this. In those circumstances the applicant was entitled, by s 93D(5) and (6) of the Act, if he could obtain a doctor's opinion indicating that his degree of disability was not less than 16 per cent, to refer the question as to his degree of disability to the Director of Conciliation and Review ('the Director') appointed in accordance with Div 1A, Pt V of the Act. He did obtain such an opinion. He consulted Dr A W Musk, a physician who has expertise in the field of respiratory medicine. Dr Musk provided him with a report, dated 24 February 2000, in which he concluded that the applicant's degree of disability was about 20 per cent. The applicant delivered the report to the Director.

The Director, once he had received Dr Musk's report, notified Manford Property of its contents. However it continued to insist that the applicant's degree of disability was less than 16 per cent. A 'dispute' consequently arose for the purposes of s 93D(8) of the Act. It was not resolved by agreement. Because the dispute related to a disability mentioned in s 33, s 34 or s 35 of the Act (being one caused by, inter alia, lung cancer and asbestosis), the dispute was required, by s 93D(11), to be referred to a medical panel for determination as described in s 36 of the Act. That section provides for references to a medical panel comprising two or three physicians nominated from amongst those who specialise in diseases of the chest or in occupational diseases, one of whom must specialise in diseases of the chest."

[47]

17 It has long been recognised that the Attorney-General may intervene in proceedings before court, even civil proceedings between private parties, in order to advance or to protect some public right or interest: Attorney-General (Commonwealth) v T & G Mutual Life Society Ltd [1978] HCA 24; (1978) 144 CLR 161 at 166; Attorney-General (Commonwealth) ex rel McKinlay v The Commonwealth [1975] HCA 53; (1975) 135 CLR 1 at 26. This appears to be an application of the principle that the Attorney-General, alone, may bring or defend an action involving a public right or remedy, a public nuisance or a breach of public statutory interests: Attorney-General v Oxford, Worcester and Wolverhampton Railway Co (1854) 2 WR 330; Attorney-General v BP (Aust) Ltd [1964-1965] NSWR 2055; (1964) 83 WN (Pt 1) (NSW) 80; Hoffman-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 at 363; Attorney-General (NSW) v Brewery Employees Union of NSW [1908] HCA 94; (1908) 6 CLR 469 at 499 - 500; 552 - 553; Anderson v The Commonwealth [1932] HCA 2; (1932) 47 CLR 50 at 52 and Tasmania v Victoria [1935] HCA 4; (1935) 52 CLR 157 at 171; 186 - 188. However, where no public right, interest or remedy is concerned the Attorney-General has no right of action ex officio nor any right to intervene in litigation between parties: Cooney v Ku-Ring-Gai Corporation [1963] HCA 47; (1963) 114 CLR 582; The Commonwealth v Rhind [1966] HCA 83; (1966) 119 CLR 584; Gouriet v Union of Post Office Workers [1977] UKHL 5; [1978] AC 435 at 500 and Attorney-General; ex rel Spalding Rural District Council v Garner [1907] 2 KB 480 at 487. A person accepted as an intervener becomes a party to the proceedings with all the privileges, and liabilities, of a party. Hence an intervener can appeal, tender evidence and participate fully in all aspects of the argument: Attorney-General (Commonwealth) v The Queen (the Boilermakers' case) [1957] HCA 12; (1957) 95 CLR 529 and Attorney-General for Ontario v Winner [1954] AC 541 and Corporate Affairs Commission v Bradley [1974] 1 NSWLR 391 per Hutley JA at 396.

[66]

"Forced Respiratory Maneuvers (Simple Spirometery)

Physiologic testing of pulmonary function is the quantitative basis on which the evaluation of respiratory system impairment rests. A forced expiratory maneuver must be performed during the examination and evaluation of each patient for permanent pulmonary impairment. The testing and spirometery must be performed on standardised equipment calibrated according to, and using the techniques described in, the 1987 ATS Statement on Standardisation of Spirometery.

Measurements are made from at least three acceptable spirometric tracings of forced expiration: forced vital capacity (FVC), forced expiratory volume in the first second (FEV1), and the ratio of these measurements (FEV1/FVC). The maneuvers should be performed at least three times, and the results of the two best FVC efforts should be within 5% of each other. The tracing with the highest FVC and the tracing with the highest FEV1 should be used to calculate the FEV1/FVC ratio even if these measurements occur on different expiratory efforts.

...

Measurements of FVC and FEV1 should be compared to the values obtained from healthy subjects or reference values. Such values for both men and women are presented in Tables 2 through 5 (pp 156 through 159). To find the average or 'predicted value', find the patient's age in the left-hand column and the height along the top row; the predicted value lies at the intersection of the appropriate row and column.

North American whites have larger spirometric values for a given age and height than North American blacks. According to the ATS Taskforce For Interpretation of Pulmonary Function, the following adjustments for predicted lung evaluation in black persons should be followed: values given for predicted normal FVC in Tables 2 and 3 should be multiplied by 0.88; values for predicted normal FEV1 in Tables 4 and 5 should be multiplied 0.88; values for normal single breath carbon monoxide diffusing capacity (Dco) in Table 6 (above) should be multiplied by 0.93.

Current information indicates there is a tendency for Hispanics, Native Americans, and Asians to have lower lung function values than North American whites. The cause and the magnitude of this difference are not yet well established, however, and no recommendation for the proportional adjustment of predicted lung function can be made at the present time."

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (104 paragraphs)

Re Medical Assessment Panel; Ex Parte Symons [2003] WASC 154 (15 August 2003)

Parties

Legislation Cited (1)

Cases Cited (43)