Stirling v Local Government Association Workers Compensation Scheme

Did Mr Stirling act unreasonably in bringing or in his conduct of the proceedings?

7

The LGA contends that Mr Stirling acted unreasonably for the following reasons:

•

The Tribunal found that some of the worker's answers suggested that Mr Stirling was preoccupied with the consequences of his injury and exaggerated his pain experiences.

•

The Tribunal was concerned about Mr Stirling's apparent need to give an elaborate explanation about the activities depicted in surveillance film.

•

Mr Stirling's treating specialist had prior to trial, through a medical report, expressed the opinion that he could undertake the duties proposed by the plan, albeit that pain might be a limiting factor.

•

Mr Stirling did not, in resolving not to comply with the plans, do so as a result of advice from those treating him because he did not seek that advice.

•

The Tribunal found that Mr Stirling did not attempt to do the work provided for by plan nineteen "because he had unilaterally formed the view that its terms were not appropriate".

•

The Tribunal found "that Mr Stirling was angry and annoyed with the LGA. He was unimpressed by its decision to rely upon a medical opinion that he did not agree with. He was unimpressed by its decision to take a more robust approach to his rehabilitation".

•

The Tribunal found "that anger and annoyance did not provide reasonable grounds upon which to refuse to perform all of the duties provided for by plan nineteen".

•

The Tribunal found that Mr Stirling's attempt to work for five days per week for a couple of the weeks in the period provided for by plan twenty was not a genuine attempt and that he exaggerated his pain experiences to Dr Bowler on 16 and 23 August 2007 to persuade Dr Bowler that working five days a week was unachievable.

8

Based upon these the LGA contends that the threshold necessary to bring into play s 95(3)(b) of the Act has been met. It contends that Mr Stirling acted unreasonably in bringing the proceedings because ultimately his various challenges to the plans and the determinations were motivated by his anger and annoyance. It contends that Mr Stirling similarly acted unreasonably in his conduct of the proceedings and that his exaggeration of his pain experiences, his response to the film evidence and his narrative to his treating doctors compounded this.

9

A finding that a worker deliberately lied would go a long way in establishing grounds to support the invocation of s 95(3). The Full Bench said as much in Seeby v WorkCover/MMI Workers Compensation (Korvest Ltd) when it wrote:

"Whether a worker has acted unreasonably in bringing or in the conduct of proceedings requires a case by case consideration. However, for a worker to engage in deliberate misleading on significant evidence going to the resolution of the issues would rarely avoid such a conclusion. That has been an approach consistently taken in this Tribunal, its predecessors and in the Industrial Court in its workers compensation jurisdiction. See South Australian Meat Corporation v Farbotka (1980) 47 SAIR Pt 2 699; South Australian Meat Corporation v Esposito (1981) 48 SAIR Pt 2 698; Disotto v WorkCover Corporation/MMI Workers Compensation (SA) Ltd (St Basil's Home for the Aged) J.D.92/1999; Elvey v WorkCover Corporation/CGU Workers Compensation (SA) Pty Ltd (Western Personnel Services Pty Ltd) [2000] SAWCT 60; Chapman v WorkCover Corporation/Royal and Sun Alliance Workers Compensation (SA) Ltd (ASM Australia Pty Ltd) [2000] SAWCT 126. To the degree some indication of the approach may be of assistance, these authorities indicate that mendacious testimony by an applicant carries with it a very high risk of forfeit under subsection (3)."[3][4]

10

However my rejection of Mr Stirling's evidence does not necessarily lead to the conclusion that he deliberately lied. I repeat what I said in Disotto v WorkCover Corporation/MMI Workers Compensation (SA) Ltd (St Basil's Home for the Aged):

"As Professor Eggleston in his text 'Evidence, Proof and Probability' noted at pp.152 and 153:-

'The assessment of the credibility of a witness does not merely involve making a decision as to whether the witness is telling lies. Strictly speaking, a lie is a statement which the speaker does not believe to be true, but many witnesses make false statements in the firm belief that they are telling the truth.' "[5]

11

The adverse findings that I made as to Mr Stirling's credit were not based upon a conclusion that he was acting dishonestly or that he was deliberately fabricating evidence about the extent of his capacity for work. I think he genuinely believed that he was incapable of working that fifth day of work that underpinned the various s 36 determinations. An occupational physician, Dr Cullum, supported that view. Although I concluded that Mr Stirling's assessment of his capacity for work was misguided I am not persuaded that in putting the LGA to proof in respect of the matters contained in the various determinations and in challenging the reasonableness of its rehabilitation and return to work plans Mr Stirling can be said to be have acted unreasonably in bringing or in the conduct of the proceedings.

12

Accordingly, in my view, Mr Stirling is entitled to his costs of an incidental to the judicial determination without reduction.

Did the LGA unnecessarily prolong the proceedings?

13

In contending that the LGA unnecessarily prolonged the hearing of the judicial determination Mr Stirling refers to time wasted and time spent in arranging and hearing evidence to deal with irregularities concerning surveillance film that the LGA relied upon in its case before me.

14

The LGA accepts that Mr Stirling was entitled to challenge the film. Its counsel then went on to say:

"...the film showed Mr Stirling. He admitted it was him. It showed him undertaking a variety of relatively mundane activities. The value of the film was in Mr Stirling's response to it.

In my submission, it was unreasonable that Mr Stirling then required the compensating authority to recall, I think, Mr Coldman and to call Mr Mammone. I have no doubt my friend was instructed to do that, and it's no criticism of my friend, but in my view those instructions given by Mr Stirling indicate the intractable nature of the dispute before the tribunal; that he had formed a mindset, the genesis of which was anger and annoyance; from which he never deviated.

...I'm diametrically opposed to my friend on the issue of costs in relation to that part of the trial associated with the film. It was not reasonable. As you found, it was implausible to suggest that there was some conspiracy between the LGA and Mr Mammone, and certainly I accept that there was a basis for the film to be challenged, but I think the way in which it was done and the extent to which that rabbit was chased down that burrow was unreasonable."

15

Whilst it is true that I found it implausible to suggest that there was some conspiracy between the LGA and the surveillance operators, this was a conclusion that I reached only after hearing all of the evidence. I think the concession (rightly made) that Mr Stirling was entitled to challenge the film brings this issue to an end. Mr Stirling would not have needed to deal with this issue if there were not some irregularities with the film, the discs containing the film and the notes of the surveillance. Although these irregularities were not strictly the LGA's fault, it must, in the context of this issue, accept responsibility for the defaults of its agents.

16

There is no doubt that the hearing of the judicial determination was prolonged because this issue was explored.

17

Mr Saies prepared a summary for me that the hearing was prolonged by a period of at least two days as a result of exploring this issue. I think that is a fair assessment. Whilst it is true that a period of a full two days was not required to address the issue there were difficulties in arranging witnesses and I think the suggestion that around two days was lost because of the need to explore this issue is a reasonable one. Accordingly, I allow Mr Stirling application for an order that he recover a higher amount of counsel fees for that two day period that that which would have otherwise been ordered.

18

It does not follow that Mr Stirling is thereby automatically entitled to recover $225 per hour for counsel fees for those two days. The rule speaks of "up to". I have not heard from the parties regarding this.

19

At the conclusion of argument an issue was raised about how we would deal with the costs of the costs application and it was suggested that we needed to conduct a further hearing to deal with that issue. That prospect is not one that I would welcome. I can accept that there might be an occasion when that would be necessary but I would have thought that unless a worker's resistance to an order under s 95(3) was plainly futile or the application for an order under r 30(7)(e) was plainly without merit a worker would get costs of the hearing in relation to costs and that no further hearing would be required to reach that conclusion.

20

As it turns out in this case the position could not be clearer. Mr Stirling succeeded in his claim for costs. He successfully opposed the LGA's contention that his costs should be reduced. He succeeded in his assertion that the LGA unnecessarily prolonged the hearing of the judicial determination. Nothing that the LGA could put to me would persuade me that he should not get his costs of the costs application. I will therefore make that order without hearing further argument.

21

In summary I order as follows:

•

Mr Stirling is entitled to his costs of and incidental to the judicial determination, such costs to be agreed or taxed.

•

Pursuant to r 30(7)(e) I allow Mr Stirling's application for a higher amount to counsel fees for a two day period than that which would have otherwise been ordered.

•

Mr Stirling is entitled to his costs of an incidental to the argument about costs, such costs to be agreed or taxed.

•

I grant the parties liberty to apply as to the amount of costs generally and as to the amount of costs on account of my finding in connection with the application pursuant to r 30(7)(e).

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.

It is the practice of this Tribunal to publish its reasons for decision in full on the Internet. If any party or person contends that these reasons for decision should not be published in full the party or person must make an application within seven days of the delivery of these reasons. The application shall be by an Application for Directions with a supporting affidavit and should be addressed to the presiding member(s). If no such application is lodged within the time specified these reasons will be published in accordance with the Tribunal's usual practice.

[1] [2008] SAWCT 65.

[2] Rule 30(7)(e) provides: "Notwithstanding the limitations on counsel fees previously expressed, if the presiding member is of the opinion that the party against whom a costs order is to be made has unnecessarily prolonged the hearing the presiding member may award an amount of up to $225.00 per hour for counsel fees for any period of time spent in court after the first 5 hours".

[4] [2001] SAWCT 63 at para 10.