In determining whether a finding on a factual issue is a finding of an ultimate fact, the question is whether it was necessary for the Review Officer to reach a finding on that factual issue in order to make a decision upon the case: see EGRI v DRG Australia (1988) 19 NSWLR 600. In our opinion, in order for a review officer to review the weekly salary pursuant to s62 of the Act it was necessary to determine the worker's physical and vocational capability, so as to arrive at an appropriate quantum. In the matter before the Review Officer it was necessary to determine whether the appellant had a physical and vocational capability of undertaking clerical work in order to conclude, as he did, that "weekly payments be reduced by the award rate for a clerical officer working full-time."

Issue estoppel has long been recognised as applying to workers' compensation tribunals: McNair v Press Offshore Ltd (above) per Owen J at 197; Makowski v TVW Enterprises Ltd, unreported; SCt of WA; Library No 940710; 16 December 1994; GK Sanford Pty Ltd v Jansen [1992] FCA 236; (1992) 36 FCR 83. More recently, issue estoppel has been recognised as applying to review officers where they, like judges, have the power to finally decide issues between parties. Review officers have this power under the Act. In McNair v Press Offshore Ltd (above) at 194 Kennedy J said:

"It has been held in Summit Homes v Lucev, unreported: FCt SCt of WA; Library No 960182; 3 April 1996, that review officers under the Worker's Compensation and Rehabilitation Act exercise judicial functions and are bound to act judicially in the discharge of their duties. Furthermore, by s84ZA of the Act, the function of the review officer is to "resolve" the dispute between the parties. By s84ZN, the decision of the review officer is not open to question or review in any court, subject only to an appeal to a Compensation Magistrate when a question of law is involved. In the circumstances, the review officer had the power 'to decide finally' the question which arose between the parties."

As noted by Owen J in McNair v Press Offshore Ltd (above) at 197, "[u]nlike the [Workers' Compensation] Board, a review officer is not deemed by the statute [the Act] to be a 'court'". However, this does not prevent a finding of fact by a review officer attracting the doctrine of issue estoppel. The doctrine applies because the review officer has the power to finally decide an issue of fact. In McNair v Press Offshore Ltd the appellant had lodged a claim for compensation under the Act alleging that on 1 August 1992 he had suffered a disability while employed by Mayne Nickless Ltd as a security guard. He alleged he was injured when walking down some metal free-standing steps leading from the guardhouse because the steps moved causing him to fall and suffer injury. The second respondent was joined as a third party in the proceedings. The application was dismissed by a review officer who did not accept the evidence of the appellant. The review officer said that he was not satisfied that the appellant fell as he claimed "and therefore no disability was suffered". There was no appeal to the Compensation Magistrate. Such an appeal lies under s84ZN of the Act only when a question of law was involved. Prior to the conclusion of the review the appellant had commenced an action for damages for negligence against both Mayne Nickless Ltd and Press Offshore Ltd. Following the decision of the review officer both defendants in the action were given leave to amend their defences to plead issue estoppel and the plea that the plaintiff had suffered an injury by "accident" was struck out on the ground of issue estoppel. In the Full Court Kennedy, Pidgeon and Owen JJ upheld that conclusion on the basis that the decision of the review officer that there had been no relevant accident was a final decision on a question of an ultimate fact on which the existence of the cause of action depended.

It was contended, however, that the Review Officer's decision on a review under s62 of the Act was not a final decision. The appellant relied on the decision in Weeks v Harbourworks Clough, above. Section 62 is in the same terms in the present Act as it was in the old Act, save that the Directorate has been substituted for the former Board. The question in Weeks was whether the power to review in s62 could only be exercised if it were shown that there had been a change in circumstances. The Court held that a change in circumstances was not a prerequisite to the exercise of the power of review. Brinsden J said at 334:

"What s62 requires the Board to do is to review a weekly payment. A weekly payment of course is a consequence upon some degree of incapacity. The review, therefore, concentrates on the worker's physical or economic position as at the time of the review though, under s62, the Board may make an order as from such date as it sees fit having regard to the past or present condition of the worker. Of course if the situation of the worker on the review is exactly the same as at the time of the original hearing, the matter then would be res judicata for s62 cannot be used as a means of appeal against the earlier decision. In Radcliffe v Pacific Steam Navigation Co [1910] 1 KB 685 at 691, Fletcher Moulton LJ said:

'Whether or not the matter is res judicata, must depend solely upon whether the issue to be decided by the county court judge has already been litigated and decided between the parties ... a decision as to the condition of the workman and the nature of his injuries did not constitute res judicata, because it was merely the expression of opinion based on the evidence then procurable, and that it might be corrected at a future time when experience and future developments had increased the materials for arriving at a correct conclusion.'

In the case previously cited of Ramsay v Gramophone Co Ltd Scott LJ at 761 remarked that where on a review justice appears on the evidence to call for an order in favour of a workman, there must be a very clear case of res judicata by reason of a previous award, before the judge can properly hold the workman is estopped by judgment from receiving the benefit of the new order and of course the converse applies in respect of employers. His Lordship went on to say:

'... If the county court judge after hearing evidence on both sides comes to a conclusion (there being evidence to support it) that he has not in truth been merely re-trying the previous issue; if he sees that there are differences, whether in the workman's physical condition, or in his knowledge of what he can do and cannot do, or in the scientific information available about his condition, or even in the clear diagnosis of it by medical experts - in short if new light from any angle enables him to see that the position is not the same as before, in my opinion, he is free to give effect to his view of what is just upon the evidence; there is nothing in the doctrine of res judicata to prevent him. The judgments in Sharman v Holliday & Greenwood Ltd [1904] 1 KB 235, and Radcliffe v Pacific Steam Navigation Co [1910] 1 KB 685 which lay down these principles, illustrate what I have said, and show, I believe, that my suggested instances of fresh light are in conformity with the principles of those decisions.'

In an earlier case George Gibson and Co v Wishart [1915] AC 18 at 28 Lord Atkinson pointed out that an award of workers' compensation is an award directing payments during the continuance of a certain state of circumstances, or until the happening of a certain event, which judgment by its very terms directed that the payment need not be done when those circumstances have altered in the way contemplated, or when that event has occurred. His Lordship could see no reason why, where in a proper proceeding the fact is established, that the particular state of circumstances has ceased or the particular event has occurred when the thing directed should cease to be done, the arbitrator should not be entitled to make an order, in truth, only carrying into effect the first order, and direct that the thing need not be further done. Mills, Workers' Compensation New South Wales (2nd ed), at par 395 points out the purpose of a review is to enable periodic adjustment of weekly payments in correspondence with the degree of incapacity from time to time affecting the workman in actual fact. The very essence of the legislative system of workers' compensation is the avoidance of prospective estimates and the correction of current estimates from time to time to make then [sic them] correspond with the reality, quoting Scott LJ in Ramsay v Gramophone Co Ltd (supra). The learned author goes on to say that the change of circumstance that will justify a review will include any material bearing on the degree of incapacity resulting from the injury, at the date of the application for review, and if it justifies a different conclusion from that reached when the award was made, then the payment under that award may be varied or terminated. I agree that the correct approach is outlined by the authorities I have cited and by what has been stated by Mills."

"The law as it has been developed under sections fairly comparable to s62 is now well settled. The section is not a section granting a right of appeal, so it cannot be used to set aside a finding made that a disability of a worker had occurred or a finding, as it would be made under the old Act, that the worker had suffered a personal injury by accident within s7 of that Act.

The jurisdiction of the Board to entertain an application to review weekly payments, that is to say, to enter upon the inquiry, is not by s62 conditioned by the existence of 'new circumstances'. This I would have thought to be self-evident and I only mention it in passing as the appellant's counsel so contended in his argument before us.

The Board, on a review of weekly payments, may decline to make an order or it may make one or other of the orders which it is by the section authorised to make and it will exercise that jurisdiction 'having regard to the past or present condition of the worker'. Those words mark out the area for inquiry and it will make its finding upon the past or present condition of the worker upon the evidence which is called before it. If upon that evidence the past or the present condition of the worker has been and is as it was when the order for the making of the weekly payments under review was made, no ground would be made out for making any order and for that reason there is an onus on the party seeking an order under the section to show 'changed circumstances'. But it is, I think, a mistake to say that the inquiry on a review under the section is, and that it is confined to the question as to whether there have or have not been changed circumstances. The inquiry must be as to whether, having regard to the 'past or present condition of the worker', it is 'fit' that an order be made to end, diminish or increase the weekly payments under review."

Wallace J at 332 referred with approval to two decisions in England in relation to provisions to the same effect as s62. In Radcliffe v Pacific Steam Navigation Co Ltd [1910] 1 KB 685, in the Court of Appeal, Cozens-Hardy MR said:

"There will be change of circumstances, where experience has shown that the previous opinion based on expert evidence was wrong: a conclusion at one point of time that the man's opportunity of obtaining employment had not been affected by the results of the injury, or had only been affected to a minor degree, is a matter of opinion rather than one of fact, and if it is proved to be inaccurate there is a change of circumstance."

In M'Alinden v James Nimmo & Co Ltd [1920] AC 39 at 44 Lord Shaw said:

"... if by the expression 'change of circumstances' were meant merely a change of circumstances of the condition of health or body owing to the accident, there might be no such change whatsoever. But what is meant in language of that kind in cases like the present is that there has been more light thrown by the applicant upon the results of the injury and upon the effects of the labour market with which the having of such an injury causes to him. That is a plain change and a plain result may follow, namely, that the man who pronounced the original judgment as arbiter may find that the award does not fit the case with the additional light thrown on it by experience."

The decision in Weeks makes it clear that a review under s62 of the Act will be subject to res judicata (or for that matter issue estoppel, although no distinction was made within the reasons for judgment) if and only if the circumstances at the time of the review are precisely the same as they were at the time of the original decision. Otherwise the original decision is open to review. Thus, unless the circumstances at the subsequent hearing are exactly the same no question of issue estoppel arises. It follows that in all other cases, if there is any other evidence which may lead to a different result, a decision on a review under s62 of the Act is not a final decision and does not create an issue estoppel.

There is another way of looking at the matter. There is a distinction between the issue before the review officer under s62 and the issue which was before the Committee under s93D. The distinction was recognised by the Commissioner himself in the recent decision in United Construction Pty Ltd v Gajic, unreported; DCt of WA; Library No D980195; 16 July 1998 when he said at 17-18:

"The key issue to be determined by the review officer when he heard the respondent's application for weekly compensation payments was whether as a result of the accident the respondent was incapacitated for work at any time between 14 January 1994 and the hearing and whether he was incapacitated for work at the time of the hearing and thereafter. The review officer expressed the question he had to determine in terms 'whether, as a result of this injury, he remains incapacitated for work'. This is not the same question that I must determine on an application for leave pursuant to s93D(4) of the Act. I must consider and determine whether the respondent is likely to have future pecuniary loss resulting from the disability of an amount that is at least equal to the prescribed amount.

The review officer did not determine finally or at all that the respondent would be capable of his pre-accident work on a full-time basis for the rest of his working life notwithstanding his injuries sustained in the accident. The review officer's findings are not determinative of any recurrences or aggravations which may occur. There will no doubt be cases where a person is able to work despite headaches but will eventually be unable to do so because the headaches continue or increase in severity and/or frequency. I note that s62 of the Act provides that weekly payments may be reviewed at the request either of the employer or the worker and that upon such review, may be discontinued, reduced or increased."

In our opinion the Review Officer's finding on the review under s62 that the appellant's vocational capability was that of a clerk was a finding of ultimate fact in the context of the review, but it was not a final decision. It follows that the finding was not binding on the Commissioner and this Court on the basis of issue estoppel. It also follows that it is not necessary to consider an alternative argument based upon a contention that there was an exception to the application of res judicata and issue estoppel and that this case fell within the exception. The existence of an exception to res judicata was said to have been recognised by Wigram V-C in Henderson v Henderson [1843] EngR 917; (1843) 3 Hare 100 at 115 in the following passage:

"In trying this question, I believe I state the rule of the court correctly, when I say, that where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time." (My italics)

This passage has since been cited as authority for the existence of an exception to res judicata to be invoked by the court in the exercise of discretion in the interests of justice: Hoystead v Commissioner of Taxation [1926] AC 155 at 170; Kok Hoong v Leong Cheong Kweng Mines Ltd [1964] AC 993 at 1010-1011**; Yat Ting Investment Co Ltd v Dao Heng Bank Ltd** [1975] AC 581; and Brisbane City Council v Attorney-General (Q) [1979] AC 411 at 425.

The High Court has on two occasions considered the relevant passage in the judgment of Wigram V-C in Henderson (above); in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589; and Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 509. The majority judgments in both of these cases understood Wigram V-C in Henderson (above) not to have held that there was an exception to the principle of res judicata, but rather that in limited situations there may be an exception to the principle where "an issue is sought to be raised 'which could and should have been litigated in the earlier proceedings' ": Port of Melbourne Authority (above) at 597-598 per Gibbs CJ, Mason and Aickin JJ; Chamberlain (above) at 509 per Deane, Toohey and Gaudron JJ. This view was shared by Dawson J in Chamberlain (above) at 512.

In Port of Melbourne Authority (above) at 613-614 and Chamberlain (above) at 504-505 Brennan J also rejected any exception to the principle of res judicata. His Honour indicated that he did not understand Wigram V-C in Henderson (above) as having held that there was an exception to res judicata, but rather that he "had in mind the principles which governed the discretion to give leave to file a bill of review to impeach a decree": Port of Melbourne Authority (above) at 613.

In contrast to the Australian High Court's rejection of the development of any principle that there exists any exception to res judicata, the relevant passage in the judgment of Wigram V-C in Henderson (above) has been interpreted by English courts not only as authority for the principle that there is a discretionary exception to the principle of res judicata but has also been used to develop a similar exception to issue estoppel: Arnold v National Westminister Bank plc [1991] 2 AC 93; and Fildelitas Shipping Co Ltd v V/O Exportchleb [1966] 1 QB 630 at 642, per Diplock LJ. Needless to say this position has not been mirrored in Australian law. Although "[t]he doctrine of issue estoppel operates in a more restricted way in family law disputes and in criminal cases" because of special policy considerations in those particular areas of the law (Cross on Evidence (5th Aust Ed 1996) para 5115 at 163 referring to paras 5125 and 5130), Australian law, strictly speaking, does not recognise any exception, discretionary or otherwise, to the principles of res judicata or issue estoppel.

In our opinion ground 1 of the appeal succeeds because a decision on a review under s62 of the Act is not a final decision in the context of the Act, unless the circumstances and evidence on the review are precisely the same as on the original hearing. In the present case there was a body of medical and other evidence before the Court which post-dated the decision of the Review Officer on 16 November 1995 which, as will appear, was the kind of evidence that may have produced a different conclusion.

Evidence of physical and vocational capability: Ground 2

Ground 2 challenges the Commissioner's finding that quite apart from issue estoppel the appellant was "physically and vocationally able to carry out light duties, including clerical work." In this context the Commissioner said at 12:

"Even if issue estoppel did not apply I am of the view that there is a clear body of persuasive evidence before me that the respondent is physically and vocationally able to carry out full time light duties, including clerical work. I refer to the contents of the reports of Mr Lee, Dr Andrew Marsden and Ms Atkins that I have previously set out herein."

In support of his submission that the evidence did not support the Commissioner's finding concerning the appellant's physical and vocational capability, counsel for the appellant referred to the report of Dr Gino Mastaglia dated September 1995 in which he said that:

"She has difficulty standing, sitting for long periods and lifting. She is unable to sleep because of her back pain...She is very tender at the lumbar sacral area bilaterally, she has poor muscle tone of the abdominal wall and she is overweight ... "

However, Dr Mastaglia's description of her physical condition must be understood in the context that at the end of his report he said in respect of the appellant's future employment:

"She does need to undergo a rehab program, there was an instance where she was offered security work at night and she found this also to be very dangerous and she really needs to look at clerical type work and retraining is obviously going to be involved in her rehab program."

Counsel for the appellant also referred to Dr Mary Searson's report dated 21 May 1996 where it was said that the appellant could sit only for an hour before she had to get up and move around.

The respondent contended that there was no evidence to suggest that the appellant's physical capacity precluded her from doing the kind of jobs in which she had previously been employed. Counsel for the respondent, however, conceded that the most pessimistic view of the appellant's physical condition was that expressed by Dr Searson in an undated report following an examination of the appellant on 10 February 1997 and in a further report dated 21 March 1997. The Commissioner found that the report of 21 March 1997 was made subsequent to the undated report. The Commissioner referred to Dr Searson's reports, at 10, in the following terms:

"In an undated report Dr Searson sets out that the respondent had been seen on 10 February 1997, that she was still suffering from a mechanical back injury and that her condition had not changed for the past year and that the respondent [appellant] was anxious to return to work and could do light part time work not involving lifting or twisting movements or standing too long. On 21 March 1997 Dr Searson reported that the respondent's condition has not changed and that she cannot do heavy lifting but can do light duties."

In respect of the appellant's physical capability, counsel for the respondent also referred to Dr Mastaglia's report dated September 1995 in which he indicated that clerical duties would be appropriate employment for the appellant. Other evidence referred to by the respondent and which was referred to by the Commissioner was a report by Mr Michael Lee, a neurosurgeon, dated 23 February 1996 in which it was said:

"These continuing complaints are more of a nuisance than a total disability but there is a disability to the extent of being unable to return to work with Silver Chain."

The respondent also referred to a Form 4 Final Medical Certificate received by the appellant from Dr Searson dated 9 June 1995 in support of its submission that the appellant was physically capable of undertaking clerical work. The medical certificate completed by Dr Searson indicated a ticked box next to the proforma option "the worker has wholly recovered from the effects of the disability" next to which Dr Searson had handwritten a note that said "[b]ut should not return to her old job which involved heavy lifting."

In our opinion, the assessment contained in the Final Medical Certificate that the appellant had wholly recovered is inconsistent with other reports on the appellant's condition provided by Dr Searson. In particular, it is inconsistent with Dr Searson's undated report in which he records that he saw the appellant on 10 February 1997 and says:

"(a) She will not be able to return to her pre accident type of work with full unrestricted participation in work duties. She is anxious to return to work and could do light part time work not involving lifting or twisting movements or standing too long.

(b) I don't think Mrs Waddington's [appellant's] condition is likely to improve but it probably won't get any worse. Her disability is about 50%.

(c) Her future working life will be restricted to light part time work."

The explanation for the inconsistency between Dr Searson's assessment of the appellant's physical condition in the Final Medical Certificate and his medical reports is contained in his letter to the appellant's solicitors dated 21 March 1997, in which he says:

"She can't get a job as long as she is on workers [sic workers'] compensation which is probably why I gave her a final certificate originally."

Counsel for the respondent also submitted that there were inconsistencies between Dr Searson's evidence and other evidence of the appellant's physical and vocational capability. In particular, counsel referred to a letter from Ms Michelle Atkins, a senior occupational therapist, to Mr Scott Bailey of CE Heath Insurance dated 24 October 1995. In this letter, after referring to Dr Mastaglia's report dated September 1995 that the appellant "has difficulty standing, sitting for long periods and lifting", Ms Atkins said that the appellant did not require rehabilitation to move into clerical work. As to the appellant's vocational capability, Ms Atkins also said:

"It appears from reading the information and speaking with Ms Waddington that she possess' [possesses] a high level of clerical skills and that she will not have difficulty securing employment."

The appellant contended that the Commissioner erred in placing too much emphasis on Ms Atkins' conclusion in respect of the appellant's vocational capability that she possessed "a high level of clerical skills". Counsel for the appellant submitted that this conclusion was inconsistent with the appellant's evidence in her affidavit sworn 21 March 1997 that:

"I do not have a 'high level of clerical skills' and I do not know how Ms Atkins has drawn that reference. I have never been required to do typing during the course of my employment and I do not possess any computer skills."

The Commissioner described the appellant's assertion as to her absence of clerical skills as "self-serving" and "contrary to Ms Atkins' evidence that she is able to perform clerical work." The appellant said in her affidavit that after leaving school at the age of 15 she worked as a warehouse packer, glove machinist and barmaid before working as a dispatch clerk from 1976 to 1982 in the United Kingdom. During this employment she also did a typing certificate in 1980. Since then she has worked primarily as a caregiver. Ms Atkins does not say in her report what information, including anything said by the appellant, was the basis of her conclusion. The only evidence available to this Court of the appellant's vocational capacity is that in the appellant's affidavit. One can only assume that the information provided by the appellant to Ms Atkins was the same as that contained in the appellant's affidavit. The position of a dispatch clerk does not require a high level of clerical skills. Ms Atkins' report is at odds with this evidence. In our opinion the evidence before the Commissioner did not justify him in resolving the apparent conflict between Ms Atkins' report and the sworn evidence of the appellant against the appellant and in a way which reflected adversely on her credibility as a witness. As Parker J (with whom Kennedy and Wheeler JJ agreed) said in Sampson v Industrial Progress Corporation Pty Ltd, unreported; FCt SCt of WA; Library No 970058; 21 February 1997 at 5:

"In attempting to assess the future pecuniary loss of a person seeking leave to commence proceedings, it is necessary for the court to act on affidavit evidence and it is likely that there will be some divergence or conflict in that evidence. While in some situations the court will be able to come to a clear view of the relevant facts despite divergences in the affidavit evidence, in most cases it will be inappropriate to attempt to resolve material conflicts. Given the nature of the application, usually it will be appropriate, where there is material conflict or divergence, to act on the view reasonably open on the evidence which most favours the applicant. Both parties to this appeal accepted this view. It is the approach which commended itself to L A Jackson DCJ in Sgro v New Cement Co Pty Ltd, unreported; DCt of WA; Library No 4564; 3 August 1995."

In our opinion, having regard to all of the evidence it was reasonably open on her evidence that Ms Atkins misapprehended the appellant's information and that the appellant could be accepted as a witness of truth at the trial. Putting it at its lowest, her prospects of establishing that she could not work as a clerk either full-time or at all, were not so remote as to be far-fetched or fanciful: cf Sebregts v SECWA, unreported; DCt of WA; Library No 5106; 9 October 1996 per Principal Registrar Harding. The question is ultimately one which can only be resolved at trial: Mayne v Mayne Nickless Ltd, unreported; FCt SCt of WA; Library No 960223; 26 April 1996 at 14 per Kennedy J, at 10 per Murray J and at 5 per Parker J; and Lend Lease Employers Systems Pty Ltd v Lydon, unreported; FCt SCt of WA; Library No 980088; 27 February 1998, per Kennedy J at 5 (with whom Ipp J agreed). In our opinion ground 2 has been made out.

Ground 3 contends that, having found that the appellant would be likely to prove that she has lost her pre-accident earning capacity, the Commissioner ought to have found that it was not remote that the appellant would be unable to find suitable alternative employment. The Commissioner, applying the test in Thomas v O'Shea (1989) A Tort Rep 80-251 at 68, 701, per Malcolm CJ, Wallace J and Kennedy J, concluded that at trial the appellant would be likely to prove that she had lost her pre-accident earning capacity. The Commissioner then focused on the second limb of that test, namely that:

"[the appellant] would need to establish that she has been unable to find alternative employment or that her condition has prevented her from finding alternative employment."

In this context the Commissioner, at 14, referred to the appellant's affidavit sworn on 9 September 1996 in which she said:

"... I have applied for numerous jobs. These have included positions as a respite worker, driver, sales assistant, mailing assistant, clerk, telephone order clerk, customer service officer and merchandiser. When I mention my injury to potential employers I feel they become disinterested. One position I applied for was that of a kitchen hand. I did not inform them of my injury until I was interviewed as one of four out of 200 applicants. The interviewer did not offer me the job, I believe, because of my injury. When I mentioned the injury I could see an immediate look on the interviewer's face that gave me the clear impression that I would not be employed."

The Commissioner also referred to evidence which he found contradicted the appellant's claim that she was unable to find alternative employment after the injury. In this context he said, at 14:

"Counter to this is the evidence that in July 1995 the respondent was offered a position in a training programme that would have allowed her entrance into a paid position as a security officer. It was also suggested that the respondent would be highly likely to experience promotion to the position of supervisor within a two to three month period. The initial starting salary was $18,990 gross plus penalties. Promotion would have brought about an increase in salary. The respondent did not take up the offer because she was concerned that it would put her own physical welfare at risk. While the respondent was entitled to turn down the offer of employment and cannot be criticised for doing so, the fact still remains that she was offered employment that she could have performed."

The Commissioner rejected the appellant's evidence that she was unable to find alternative employment pointing out that "such a finding cannot be based on the 'feeling' or 'belief' of the respondent". In rejecting the appellant's affidavit evidence the Commissioner held that the appellant had not satisfied the second limb of Thomas (above), and therefore the evidentiary onus had not shifted to the respondent to show what alternative employment opportunities were open to the appellant, including the state of the labour market and likely earnings.

Counsel for the appellant submitted that the Commissioner erred in rejecting the appellant's affidavit evidence which counsel contended was sufficient for a trial Judge to be satisfied that the evidentiary onus had shifted. In Sampson v Industrial Progress (above) at 5 Parker J said:

"Section 93D(4) necessarily requires a court to make an assessment albeit in a preliminary way and on affidavit, of the measure of damages for future pecuniary loss which is likely to be awarded to the applicant in the event of a trial. In some applications it will be appropriate, therefore, for the court to allow to the applicant the benefit of any shifting evidentiary onus which it is reasonable to anticipate in the course of a full trial. One such evidentiary onus which is relevant to the present case is that adverted to by Malcolm CJ and Wallace J, Kennedy J concurring, in Thomas v O'Shea (1989) Aust Tort Reports 80-251 at 68,701 ..."

Counsel for the respondent submitted that the Commissioner was correct in rejecting the appellant's affidavit evidence insofar as it consisted of the appellant's beliefs and feelings why she did not find alternative employment. It was contended on behalf of the respondent that in making his decision in respect of the appellant's evidence as to alternative employment the Commissioner followed the approach of Parker J in Sampson (above).

Commenting on the approach by Parker J in Samson (above) Kennedy J said in Lend Lease Employer Systems Ltd (above) at 5:

"In his judgment, the learned District Court Judge who heard the appeal from the decision of the Registrar adopted the approach of 'placing the best interpretation that you can upon the [applicant's] affidavits'. This approach goes substantially beyond that which has been adopted in these matters, namely, that it will 'usually ... be appropriate, where there is material conflict or divergence, to act on the view reasonably open on the evidence which most favours the applicant' (Sampson v Industrial Progress Corporation Pty Ltd, unreported; FCt SCt of WA; Library No 970058; 21 February 1997, per Parker J, at 5). The words 'reasonably open' are crucial in this context."

The approach adopted by Parker J in Samson (above) needs to be considered in those instances where, in the words of Parker J, the case is not one in which the "court will be able to come to a clear view of the relevant facts despite divergences in affidavit evidence." If the Court is able to arrive at a clear view of the relevant facts despite conflicting evidence, it is suggested that the Court would not need to resort to consider the application of the approach by Parker J to the case at hand. If, however, there is a material conflict in the evidence before the court then the court should approach the evidence by acting "on the view reasonably open on the evidence which most favours the applicant." As emphasised by Kennedy J in Lend Lease Employer Systems Ltd (above) acting on a view "reasonably open on the evidence which most favours the applicant" is an approach quite distinct from placing the best interpretation one can upon the evidence for the applicant.

Turning to the evidence, the appellant's evidence that she had attempted to find alternative work was supported by Dr Searson's report that she was anxious to find work. Contrary to this evidence was the view accepted by the Commissioner that the appellant was offered employment as a car park security officer and by that very fact was able to find alternative employment so as to satisfy the second limb of Thomas (above).

It is implicit that in his conclusion regarding the appellant's failure to take up the opportunity of alternative employment as a security officer, it was accepted by the Commissioner that the appellant was suited to this position. It was submitted on behalf of the respondent that the person in the best position to make a judgment about the appellant's suitability as a security officer was the prospective employer, KC Park Safe. By offering the appellant the job that prospective employer decided that she was indeed suited. The respondent also referred to the Professional Vocational Services Report dated 7 August 1995 in support of the appellant's suitability as a security officer and her unreasonable rejection of that offer of employment.

In our opinion, however, one need not go further than the job description to determine the appellant's suitability. The position involves, inter alia, "[t]actfully challenging suspected felons; escorting suspects to the vehicle." It is obvious from this description alone that the position is suited to a person that is able to carry out physical duties more onerous than those required by the appellant's pre-injury employment. In our view the evidence showed and common sense dictated that the appellant was not suitable for employment as a security officer.

In our opinion, the conclusion we have expressed was "reasonably open" on the evidence: Lend Lease Employer Systems Ltd (above). It follows that the Commissioner was in error in not making a finding which was reasonably open on the evidence and which most favoured the appellant: Samson (above). The Commissioner did not follow the approach of Parker J in Samson (above). He acted on a view which was not favourable to the appellant, namely that alternative employment opportunities were available to the appellant as evidenced by the fact that she had been offered employment as a security officer. In our opinion the appellant's evidence that she was unable to find alternative employment should have been accepted by the Commissioner in the context of the second limb of Thomas (above).

In our opinion, on the evidence as it stands, it is likely that a trial judge would be satisfied that the appellant had demonstrated that she has been unable to find alternative employment and that her post-accident condition has prevented her from finding alternative employment. Accordingly, this is a case where there is a real possibility that the evidentiary onus will shift to the respondent "to show what alternative employment opportunities were open, including the states of the labour market and the likely earnings": Thomas (above) at 68,701. The respondent must provide evidence of the availability of suitable work and of the likely earnings from it.

The respondent submitted that if this Court were to find that the evidentiary onus shifted to the respondent then:

"In any event the Respondent had discharged any evidential burden on it to show that there was work available within the perimeter [sic parameters] of the Plaintiff's [appellant's] physical and vocational capacity."

In our opinion, the respondent did not discharge the onus of establishing that suitable work was available to the appellant. Apart from the evidence of the appellant being offered work as a security officer, which cannot be regarded as suitable employment, there was no evidence provided by the respondent that suitable work was available to the appellant. The respondent did not show that the appellant was a malingerer or had unreasonably refused to take any suitable work which was available: Thomas (above) at 68,702 per Malcolm CJ and Wallace J. For these reasons the appellant is entitled to succeed on ground 3.

Ground 4 contended that the Commissioner erred in law and in fact in finding that the appellant had failed to show that she was likely to suffer future pecuniary loss of an amount at least equal to the prescribed amount. The particulars of the ground assume success on the other grounds and a finding that it was not remote that but for the injury suffered the appellant could have continued working with the respondent on the basis of 32.5 hours per week to retirement at age 65 years.

In our opinion, the finding by the Commissioner that the appellant was capable of earning a net weekly income of $319.75, the equivalent of a first year grade 1 clerk, and had lost only $8.08 net a week in earning capacity was in error. The Commissioner calculated the appellant's loss of earning capacity on the basis that the appellant had a working life of 20 years, said to be calculated to the age of 65 years. In fact the calculation was only to 64 years of age and on the assumption that the appellant would have worked 38 hours per week. He calculated the amount that the appellant would have likely earned as a care aide as follows:

"The multiplier for 20 years at the rate of 6 per centum is 616.3. Working as a care aide for 38 hours per week generates an income of $394.28 gross ($327.83 net) per week. Applying the multiplier of 616.3 to the net amount results in a total of $202,042"

Using the 20-year multiplier the Commissioner calculated the appellant's total loss excluding medical expenses as being 616.30 x $8.08 which amounts to $4,898.90. Including future loss of superannuation contributions, medical expenses and future special damages the Commissioner calculated the total loss as being $34,353.18.

On the basis that the respondent did not discharge the onus of establishing that the appellant was qualified for and would gain clerical work, the total future loss of earnings should be calculated on the basis that the trial judge should have found that the appellant would remain unemployed. The damages should be calculated on the basis of that finding, excluding allowances for medical expenses and special damages, including superannuation, and assuming that the appellant's lost earning capacity was for a working week of 38 hours, and that the appellant would have worked as a care aide to 64 years. On this basis the calculation is $327.83 net per week x a multiplier of 616.3 = $202,042. Alternatively, assuming that the loss was calculated on the basis of a working week of 32.5 hours, which were the actual hours worked by the appellant during her first week of employment with the respondent, the total loss similarly calculated would be $283.62 x 616.3 = $174,795.

The test for determining applications for common law damages pursuant to s93D(5) of the Act is whether the worker is likely to suffer future pecuniary loss at least equal to the prescribed amount: Lend Lease Employer Systems Ltd (above) at 4. If the second limb of Thomas (above) is satisfied, then the respondent must adduce sufficient evidence such that a trial judge would find that it is likely that the plaintiff's loss of future earnings would not exceed the prescribed amount: David Alan Theobald v St John Ambulance Australia, unreported; DCt of WA; Library No 4991; 24 July 1996 at 8 per Registrar Kingsley. In our opinion, in this case the learned Commissioner should have found that it was likely that the appellant would have suffered a future pecuniary loss at least equal to the prescribed amount of $103,717.

For these reasons the appeal should be allowed and there should be an order granting leave to the appellant to commence an action for damages for personal injuries pursuant to s93D of the Act.