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[2000] SAWCT 60
General information, not legal advice.
Workers Compensation Tribunal (SA)
2000-05-18
Mr J
Original judgment source is linked above.
1 For reasons published by me on 15 February 2000, I resolved to set aside the determination of the Corporation rejecting the worker's claim for compensation made on 2 June 1997 and I determined in lieu thereof that the worker was entitled to weekly payments of income maintenance pursuant to the Act from 24 February 1994 to 25 January 1995.
2 At the time I handed down my reasons for decision, I reserved for further consideration the quantum of the worker's entitlements and I also granted the parties liberty to apply on the question of costs. I scheduled the matter for a directions hearing in my chambers for 3 March 2000.
3 When the matter was called on on that day only Mr Harbord, counsel for the worker was in attendance. Mr Harbord sought an order for costs in his client's favour. I asked Mr Harbord whether he had had any contact with the Corporation's solicitors regarding the question of costs subsequent to the delivery of reasons. Having been advised that he had received no such communications and on the assumption that the absence of the Corporation's counsel reflected that they did not want to be heard on the question of costs I made an order that the respondent pay the applicant's costs and reasonable disbursements of the proceedings to be agreed or taxed. At the request of Mr Harbord, I further ordered that such costs and disbursements be paid directly to the worker's solicitors.
4 My Associate subsequently advised me that she had received notification from Mr Walsh's secretary that he was endeavouring to attend at the Tribunal but had been delayed. Mr Walsh subsequently filed an affidavit wherein he indicated that despite pre booking a taxi, the taxi did not arrive at his offices until 10 minutes after the directions hearing was scheduled to commence. He further advised that he had been instructed by the Corporation to make an application for an order for costs in its favour and to resist any application for costs made by the worker. I was asked to exercise my powers under s 88H of the Act to set aside the order for costs that I had made on the grounds that the interests of justice required it.
5 This matter was subsequently set down for oral argument.
6 In order to understand the background of the application it is necessary for me to discuss in a little detail the matters giving rise to my original decision.
7 The worker commenced working with the employer on 26 June 1994 and was found by me to have sustained carpal tunnel syndrome in his left hand and wrist on 1 August 1994 as a result of which his capacity for work was compromised. He did not receive a clearance from his treating general practitioner until 25 January 1995.
8 As at 1 August 1994, the worker's employer was able to provide him with duties for which he was fit. That remained so until 24 September 1994 when the worker's employment with the employer was terminated.
9 The worker did not lodge his claim for compensation until 2 June 1997.
10 The Corporation determined to reject the worker's claim. It asserted that the claim was statute barred. It denied that the worker had suffered a compensable disability. It denied that the worker was incapacitated for work.
11 Although I found for the worker on all three issues, I rejected the worker's evidence that he continued to be incapacitated for work beyond 25 January 1995. I did so, to use my own words, because I had a "profound lack of confidence in his credibility". That lack of confidence arose from some video evidence which was shown during the course of a hearing depicting the worker playing guitar in a band and also from the worker's reticence in his evidence about his involvement in that band and his guitar playing. Again, to use the words of my reasons, I found "the worker's explanation as to why he [was reticent about that involvement] quite unconvincing". I also found "that the worker deliberately understated to me and to others, the extent of his guitar playing". Furthermore I found "much of the worker's evidence irreconcilable with the movements depicted on the video film".
12 As was observed by Judge Parsons DP in Armiento v WorkCover [2000] SAWCT 25:-
"S 95 provides that in the normal course of events a worker will be entitled to an award of costs of a judicial determination regardless of the result unless certain disqualifying factors are present and the Tribunal exercises its discretion to decline to make an award of costs in the worker's favour, orders costs against the worker, or reduces the amount to which the worker would otherwise be entitled."
13 Having had the benefit of submissions, and having had the opportunity to reflect upon the relevant circumstances, I find that the worker did act unreasonably in the conduct of the proceedings. It was unreasonable for him to have to deceived others and me about the extent of his guitar playing and his involvement in the band Habitat.
14 Having reached that conclusion, I now have to turn to consider what consequences follow. As I observed in Disotto v WorkCover JD92/1999, s 95(3) contemplates a scale of degrees of unreasonableness.
15 This was not a case in which the worker was an out and out liar, who was fraudulently prosecuting a claim for compensation. As I said in my reasons, I had no difficulty in accepting that the worker sustained carpal tunnel syndrome in his left hand and wrist in the course of his employment with the employer and that he was incapacitated for work as a result thereof.
16 Although I was clearly troubled by what was depicted in the film, I am unable to say that had the worker been completely upfront about his involvement with the band Habitat and the extent of his guitar playing to all of the doctors whom he saw in connection with this matter, that none of them would have supported him in his pursuit of a claim for compensation. I think I should proceed on the basis that had the worker been completely candid, the matter probably still would have proceeded, albeit that the Corporation would not have incurred the expenses associated with showing the film to its medical witness and the trial of the action would have been lessened because the film would not have needed to have been shown to the worker during the course of his cross-examination. It is also likely, that a number of other lay witnesses that were called on behalf of the worker with a view to trying to salvage the situation subsequent to the film being disclosed, might not have needed to have been called. Had the matter proceeded on that basis, even if the ultimate result had been the same, the worker would have been entitled to all of his costs.
17 With the benefit of argument and with the benefit of reflection, I think that it is appropriate to invoke s 95(3) and I think having regard to the scales of unreasonableness, it is appropriate to make an order reducing the amount of costs that the worker otherwise would have been entitled to, to reflect the wasted time and expense associated with his lack of candour. In all the circumstances I think the appropriate order is for the worker to recover two thirds of the costs that he otherwise would have been entitled to.
18 Having reached that conclusion, in my view the justice of the case requires me to set aside the order that I made as to costs on 3 March 2000 and to substitute it with an order in the terms I have just set out. I am content to make an order pursuant to s 95(4) for those costs to be paid directly to the worker's solicitors, Johnston Withers. I order accordingly.
Parties are advised that if a party wishes to appeal against any part of this decision which is appealable pursuant to s 86(1) of the Act such appeal must be filed with the Registrar in accordance with Form 11 within 14 days of the delivery of this decision and must be served on all parties.
Elvey
Workcover/Cgu