Gomez-Soto v Unisure Pty Ltd [2004] SAWCT 82

4 I do not have evidence before me that enables me to make an estimate of the income tax that the worker would have been liable to pay in respect to those earnings.

5 At no stage during the earlier hearing did either party make any submissions to me regarding the duration of the worker's notional working life.

6 All of these matters are significant in the context of a LOEC determination.

7 The quantum of a LOEC is obviously dependent upon the amount of the worker's notional weekly earnings.

8 Section 42A(2)(a) directs that in determining the quantum of the LOEC an estimation of the income tax payable on the worker's notional weekly earnings has to be deducted and that subject to any reduction on account of a capacity to earn in suitable employment (which is no longer relevant here) it is the balance then remaining that is capitalised into a lump sum.

9 A finding as to the duration of the worker's notional working life is important because the LOEC assessment must be made "over the remainder of the workers notional working life": s 42A(2)(a).

10 Section s 42A(3)(b) explains how a worker's notional working life is determined. It provides that:-

"the workers notional working life is the period over which the worker would have worked assuming that he or she had not been incapacitated and that period will be assessed having the regard to the contingencies an vicissitudes of life that might in any event have prevented the worker from continuing in employment but the period will not, in any event, be taken to extend beyond the date on which weekly payments would (assuming no assessment of capital loss were made under this section) ceased to be payable (see section 35(5));..."

11 Both parties concede that it is appropriate for me to now receive evidence to enable when to make an estimation of the worker's income tax before proceeding to make a final assessment.

12 Mr Di Fazio, counsel for the worker, contends that this is the only matter upon which I need to be addressed and that thereafter my task is to simply apply the formula that s 42A prescribes and to make the calculation of the worker's entitlements based upon retirement at age 65.

13 Mr Downs, counsel for the employer, wishes to argue that the worker's notional working life would, for the purposes of the LOEC, have ended at a point earlier than the worker's sixty-fifth birthday.

14 None of the relevant determinations make any reference to the duration of the worker's notional working life.

15 Mr Di Fazio contends that in those circumstances the only reasonable inference to draw is that the employer had determined that the worker's notional working life was to the age of 65 years.

16 Mr Di Fazio then contends that the majority decision in Wear v WorkCover/Allianz Australia Workers Compensation (SA) Pty Ltd (Greyhound Pioneer Australia) [2001] SAWCT 77 requires me to find that it is impermissible for the employer to now argue that the period of the worker's notional working life was any period less than that, because this would be inconsistent with the terms of its earlier determinations.

17 In the alternative, he contends that even if it is a matter of law it is open for the employer to make such a submission, in the exercise of my discretion I should not allow the employer to introduce any evidence in respect of this because the issue had not been raised by the employer until the end of the proceedings and that it would be a grave injustice to the worker to have to now meet such a case.

18 Finally he says that if evidence is to be allowed it should be confined to facts known as at the dates of the various LOEC determinations.

19 Mr Downs submits that as the LOEC determinations were silent on the issue of notional working life and were focused upon earnings that the worker was alleged to be capable of earning from suitable employment, the terms of the various LOEC determinations do not bar the employer from now asserting that the worker's notional working life should be based on some age short of 65 years.

20 He contends that as it only fully emerged following the presentation of the worker's defence to the LOECs and my findings in relation to that defence that there were medical and other grounds that might support a finding that contingencies and vicissitudes of life relevant to the worker could lead to a finding that his notional working life should be based on another retirement age earlier than 65 years, that it would be an injustice for the employer not to explore this.

21 The Full Bench of the Tribunal considered Wear in Gibbs v WorkCover Corporations/Mercantile Mutual Insurance (SA) Workers Compensation Ltd (Pooraka Salvage) [2004] SAWCT 70.

22 I think the clear effect of the decision in Gibbs is that the majority decision in Wear does not stand for the proposition that it is impermissible for a compensating authority to put forward arguments that are not contained in the original determination or that might even be inconsistent with propositions put by it in its original determination or reconsideration.

23 In my view there is no legal impediment that prevents the employer from contending that the worker's notional working life would have ceased prior to his sixty-fifth birthday. The real issue is whether the justice of the case should entitle the employer to now argue this point and introduce evidence in support of it, given that its application to do so has been made at this late stage in the proceedings.

24 There are a number of factors that count against the application.

25 It is, as Mr Di Fazio contends, a very belated request to pursue this matter and to introduce further evidence.

26 Moreover, the employer must have known that the worker's original position with it had become redundant. It should have appreciated, based upon the medical evidence that it had obtained and which had been served upon it by the worker, that there was evidence of other medical conditions from which the worker suffered that might have compromised his capacity to continue work to the age of 65. It should have explored this issue and introduced evidence concerning the issue during the course of the hearing that I have already conducted.

27 There is a strong public interest consideration to bring an end to litigation. This case has been pending for a very long time and it needs closure.

28 On the other hand it needs to be said that there is very little authority that can be relied upon to guide parties in defending or attacking a LOEC. What the employer is seeking to do is to pursue an argument that it had not fully appreciated was open for it to pursue. This is important because it enables me to be confident that the employer did not knowingly and deliberately chose not to pursue this issue, wishing now to retreat from a tactical decision previously taken. It made a mistake.

29 The public interest issue that I identified earlier is not the only one that I must consider. There is another public interest consideration that is also important, and that is, that the ultimate result should be a just one that is based upon all relevant available evidence. We have moved on from the days when the outcome of litigation might be primarily determined by the tactical supremacy of one of the adversaries' representatives. See, for example: Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346 at pars 26 - 32.

30 The approach that I take is that which was adopted by the Full Court of the Federal Court in Celestino v Celestino (unreported Full Court Federal Court 16 August 1990 at p 7) which was relied upon by the Full Federal Court in Londisch and Others v Gold Pacific Pty Ltd (1993) 45 FLR 128 at 140, and which is based upon principals stated by Bowen LJ in Cropper v Smith (1884) 26 CHD 710 - 711:-

".... the object of Courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases... I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice to the other party... [A]s soon as it appears that the way in which a party is framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected, if it can be done without injustice, as anything else in the case is a matter of rights."

31 By allowing the employer the opportunity to pursue this, the worker will undoubtably incur legal fees beyond which that he would have been incurred had this argument and consequential evidence being adduced as part as the earlier hearing. This is an injustice that I must take into account. However, this can largely be cured by the making of an order pursuant to Rule 28(7)(e) that the worker recover costs based on 85 per cent of the Supreme Court scale for the entire hearing.

32 If I grant the application the judgment that the worker awaits will be delayed. This is an injustice that I must also take into account. However this can be ameliorated to some extent by setting quite strict time frames.

33 Having reflected upon the matters for and against the application I have come to the conclusion that that the application to argue this point and introduce fresh evidence to deal with it should be allowed. Such evidence may include evidence of facts that have occurred subsequent to the making of the various LOEC determinations. In my view the observation made by Lord Reid in Baker V Willoughby [1969] UKHL 8; [1970] AC 467 at 490 - 1:

"There is no doubt that it is proper to lead evidence at trial as to any events or developments between the date of the accident and the date of the trial which are relevant for the proper assessment of damages..."

is apposite to a trial concerning a LOEC. Factoring contingences and vicissitudes of life always involves a degree of speculation. I see no logical reason why the Tribunal should be denied evidence that enables that process to be more accurately determined.

34 Independently of this the employer submits that in light of my earlier findings it should be permitted to contend that there is other employment that is suitable.

35 I have already ruled on what I consider to be the scope of this hearing. I can of course reconsider that, but only if there are valid grounds for doing so. The employer was given ample opportunity to identify the areas of employment that it contended were suitable. I am not persuaded that it should be now given the opportunity to explore other options.

* I direct the employer to file and serve a statement of particulars setting out what it now contends to be the duration of the worker's notional working life for the purposes of the assessments pursuant to s 42A and the grounds in support thereof within 14 days.

* I direct that within a further 21 days it file and serve any witness statements or medical reports that it intends to rely upon in connection with those particulars.

* If the worker wishes to adduce further evidence to deal with this issue I grant him such time to file and serve any witness statements or medical reports that he intends to rely upon as he may reasonably require and if necessary I shall hear from the parties as to what that time might be.

* The employer is to pay the worker's costs of the judicial determination fixed at 85 per cent of the Supreme Court scale.

* I adjourn to further consideration of this judicial determination to a date to be fixed. I propose to re-list the matter in Chambers at a mutually convenient time to enable the rescheduling of this matter.

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 the form titled Notice of Appeal within 14 days of the delivery of this decision and must be served on all parties.