Morris v Attorney-General [1992] CKHC 1; 017.1991 (27 July 1992)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(CIVIL DIVISION)
PLAINT NO. 17/91

BETWEEN

ALFRED MORRIS
of Rarotonga, Public Servant
Plaintiff

AND

THE ATTORNEY GENERAL
sued in respect of the Department of Trade, Labour and Transport
Defendant

Counsel: Mr Mitchell for the Plaintiff
Mr Appleby for the Defendant

Date of Judgment: 27th July 1992

JUDGMENT OF DILLON J

These proceedings are brought under the Workers Compensation Ordinance 1964 and relate to an accident in which the Plaintiff was involved during and in the course of his employment with the Department of Trade, Labour and Transport.

These proceedings have a somewhat unusual background in that there is agreement with all the necessary requisites for a claim of this nature, but with the introduction by the Defendant of an interpretation of the legislation which according to Mr Appleby exempts the Crown from payment of Workers Compensation where a worker is able to continue with his previous employment and maintain his financial remuneration from such employment. In other words Mr Appleby suggests that even though a worker suffers a permanent partial disability, if that worker has not suffered loss in the form of a reduction in his salary then because there is no loss the worker is not entitled to claim under the Workers Compensation Ordinance or to receive any benefit from that legislation.

Because of the stance adopted by the Crown it will be necessary to briefly consider the incident which involved the injury; the circumstances that have existed from the date of the accident to the date of the hearing; a consideration of the evidence that was produced at the Court Hearing; and finally a consideration of the principles involving Workers Compensation legislation.

THE ACCIDENT

The Plaintiff, in February 1988, was on a ship undertaking the tour of the northern Cook Island group associated with his duties in the employ of the Department of Trade Labour and Transport.

The Plaintiff suffered an accident while at sea on this ship and as a result he suffered a severe back injury which has been established as a cause of the permanent pain and incapacity which he has since suffered. Upon his return to Rarotonga the Plaintiff consulted Dr Woonton who diagnosed the Plaintiff's condition as resulting directly from the injuries previously referred to. Dr Woonton assessed the permanent partial incapacity of between 40 and 50%. The Plaintiff claims on the basis of 47½% in accordance with the calculations that are appropriate once a permanent partial incapacity has been assessed.

THE INTERVENING PERIOD

Between 1988 and 1992 numerous negotiations were undertaken to finalise the claim which had been lodged by the Plaintiff. Steps were taken to have the Plaintiff examined by a doctor in New Zealand, but this never eventuated. A claim was prepared and authorised by the Department but this was never concluded. The Plaintiff claims that he was prepared to be examined by doctors and co-operate in any way necessary. A previous solicitor in the Crown Law Office, Mr McFadzien, indicated that the claim was justified. Subsequently the Crown Law Office indicated that the claim was not justified on the basis of what I have very briefly indicated as one of Mr Appleby's submissions, and to which I shall refer later.

THE HEARING

The Plaintiff gave evidence himself, called Dr Woonton and produced a medical report from a Dr Joshipura.

I shall briefly summarise the evidence of Mr Morris. He produced a letter that he wrote to Mr Puna who was Head of the Department for whom he worked; he confirmed that he was agreeable to see an orthopaedic surgeon; he confirmed that lie advised the Crown Law Office and his Department that he was going to Now Zealand on Government business and was agreeable to seeing a New Zealand surgeon; lie -further confirmed that he had spoken to the Crown Law Office about going to India on Government business and was prepared to see a surgeon there or to be re-examined by Dr Joshipura. To none of these approaches did Mr Morris, so he claims, receive any reply. The only advice he received was from Mr Puna, the Head of his Department, who said that he was not able to settle his claim as it might be seen as favouritism. No evidence was given as to what this favouritism referred to.

When cross-examined by Mr Appleby, Mr Morris confirmed that he would still continue to work for the same Department but advised Mr Appleby that he was no longer carrying on his previous position as Inspector of Ships. He did say, however, that he fishes regularly, does scuba diving once a week, that he has his own boat for fishing purposes; and that since the accident he has received the normal increment increases that other people in his Department have also received.

Dr Woonton then gave evidence supporting the medical evidence that he had previously diagnosed in 1989 and confirmed the report that he had written on 6 November 1989. He confirms his assessment of disability at between 40 and 50%. He gave a recommendation for Mr Morris to see an orthopaedic surgeon, Mr Hardy, in Auckland but this was never taken up by the Department. In connection with Dr Joshipura who has provided a medical certificate after examining Mr Morris, Dr Woonton confirmed that Dr Joshipura had the highest possible qualification as an orthopaedic surgeon from Edinburgh.

Dr Joshipura's certificate, after detailing the injuries and the effect of those injuries, and the examination of the x-ray, certified as follows:

"This is a permanent disability and may need surgery in future if problem gets worse. He is incapable of strenuous activity. I estimate his permanent partial disability at 50%."

That then was the evidence for the Plaintiff.

Mr Appleby called two witnesses. The first was Mr Tuiravakai who is the Senior Inspector of the Department of Trade, Labour and Transport. This witness's evidence confirmed that when the accident occurred in 1988 there was no apparent disability and as a result he had recommended that the Workers Compensation file be held over for the future. He believed that the way the Plaintiff worked or walked would have shown up in the future, although he believes that this did not occur. This witness also confirmed that when he found out that the Plaintiff was not going out onto the boats and doing the work that he had previously done, he recommended that he not do this type of work which might risk aggravating any possible weakness, and that as a result he should only do land work. He believed that the last time the Plaintiff was on a boat was when a ship was brought from Fiji around the northern group, that is since the accident and some one and a half or two years ago. This witness was critical of the Plaintiff is some respects, indicating that the Plaintiff was in fact still inspecting ships, although the Plaintiff said that he hadn't been. This witness also indicated that he inspected ships, although he referred to the Harbour Master doing a lot of inspections. This witness also referred to a family shop which featured in Mr Appleby's cross examination of the Plaintiff, for whatever reason I was not able to clearly ascertain.

In cross-examination Mr Tuiravakai confirmed that he was in charge of the Workers Compensation claims for this particular Department. He also confirmed that he filled in the necessary application form and made the calculations appropriate to a claim in March 1988 after Dr Woonton had made his report. Having completed the form and the calculations the witness then sent the file to the Head of the Department.

Mr Tuiravakai confirmed that he had been involved in an accident; that he has received compensation for that accident; he assessed himself; he received a lump sum for the incident; and that his salary has not been reduced in any way. This witness, very fairly, then stated that after receiving Dr Woonton's report he had recommended payment to Mr Puna. Apparently Mr Puna accepted that the Plaintiff did receive injuries, but not to the extent as certified by Dr Woonton and this would appear to have been at the back of the delay, and then rejection, of the claim by the Plaintiff.

The second witness called by Mr Appleby was a Mrs Ina Bridgard who is the Director of Trade, Labour and Transport. She claimed that she had no record at all in her Department that the Plaintiff was an Inspector of Ships. This seemed a most unusual statement to make. However, perhaps it is clarified by her following statement in evidence in chief when she said - "I do not know anything about responsibility of inspecting ships. Mr Caffery is the Superintendent. He would be better. I don't know anything about it."

In cross-examination Mrs Bridgard did say that she was responsible for the Workers Compensation Ordinance and claims on that Ordinance. Mrs Bridgard seemed to avoid any responsibility for claims as well as deciding on whether the Plaintiff was an Inspector of Ships. She said that she had given responsibility for Workers Compensation claims to the previous witness, Mr Tuiravakai, and then to avoid any responsibility she said that the Departmental Head, a Mr Puna, who was not called to give evidence, decides all cases. Mrs Bridgard summed up her evidence saying that there were no witnesses to the accident and therefore it is difficult to trust anybody in those circumstances. This was a most unusual statement to make.

THE CLAIM

The Attorney General accepts the calculations which have been set out in Paragraphs 16 and 17 of submissions filed by Mr Mitchell. These totalled $16,210.82 based on the Plaintiff's earnings during various periods between the time of the accident and the time of the hearing. While accepting the accuracy of those calculations based on a figure of 47½%, the Attorney General does not accept liability. The other figures which go to make up the total claim of $22,435.28 relate to interest for the last four years and a contribution towards solicitors costs.

WORKERS COMPENSATION ORDINANCE

This claim falls within the provisions of Section 8 of the Workers Compensation Ordinance 1964. That states as follows:

"Compensation in the Case of Permanent Partial Incapacity

1. Where permanent partial incapacity results from the injury the amount of compensation shall be:

(b) in the case of an injury not specified in the schedule such percentage of the compensation which would have been payable in the case of permanent total incapacity as is proportionate to the loss of earning capacity permanently caused by the injury."

Herein lies the nexus of Mr Appleby's argument. He says that this particular clause requires the determination of an economic investigation and is not related to the physical assessment of a percentage of total incapacity. Appleby put it this way in his oral submissions.

"Therefore the interpretation of Section 8 relating to the permanent partial incapacity for a non-schedule injury is an economic question and not a physical question. The Plaintiff has still retained his job - he has received increment increases over the years - he has only lost overtime to which he would otherwise have been entitled. The definition clause of the Ordinance clearly establishes that a loss must be sustained before entitlement. I refer to Section 8.1(a) which is a schedule loss and is not a deemed loss. However interpreting Section 8.1(b) and the interpretation clause of the ordinance a non-schedule permanent partial incapacity is not a deemed entitlement and therefore must be based on the test of actual proof of economic loss. The onus is on Mr Morris to prove that his incapacity is such as to prevent his carrying on any employment since the time of the accident. This is not a medical question and Dr Woonton cannot assess that every possible employment available to him has been affected. In actual fact he has increased his employment - he has continued to work- he has continued and extended his fishing activities. Employment in this context means all employment or any employment, that is the whole spectrum of employment."

That then was the basis of Mr Appleby's summation and the basis of why the Department refused and rejected the claim which had been submitted and originally authorised. I must also mention that Mr Appleby rejected the admission of Dr Joshipura's certificate and claimed that this breached the hearsay rule.

Perhaps I should deal with the latter aspect first. I see no reason why this highly qualified surgeon who has provided a certificate should not have his certificate accepted by this Court. Firstly it was out of the question to be brought from India to the Cook Islands, secondly the Attorney General had the opportunity of having the Plaintiff examined by any surgeon it required to nominate in either New Zealand or in India where the Plaintiff had agreed to make himself available. The certificate by Dr Joshipura is admitted and simply confirms the evidence of Dr Woonton.

However that is not really the argument put forward by the Crown. That argument is that since the Plaintiff has continued to work and has not lost financially as a result of his accident, he cannot therefore be compensated.

Mr Mitchell just simply rejects that argument as a "total misunderstanding of the law".

The operation of Workers Compensation is, as a generalisation, a procedure to grant indemnity where the accident is an incident of employment. There are certain exemptions but these are unusual and have no application in this case. The essential feature of Workers Compensation legislation is that injury during employment entitles the worker to indemnity and is dependent on the amount of his wages and independent of considerations as to contributory negligence. The essential ingredients of liability of an employer may be generalised as follows:

(a) The worker has suffered personal injury.

(b) The relationship of employer and employee exists.

(c) The accident arose out of or in the course of employment.

(d) Total or partial incapacity resulted from the injury.

The Plaintiff's accident would appear to comply with those essential ingredients that I have referred to above. However Mr Appleby's defence to the stand taken by the Crown in this case refers to the interpretation of partial incapacity in Clause 2 of the Workers Compensation Ordinance dealing with interpretation. "Partial incapacity" is defined firstly where incapacity is of a temporary nature and secondly where the incapacity is of a permanent nature. Since the Plaintiff has suffered a permanent partial incapacity, the relevant interpretation clause may be referred to as follows:

"’Partial incapacity’ means ... where the incapacity is of a permanent nature such incapacity as reduces his earning capacity in every employment which he was capable of undertaking at that time...."

It is on this interpretation provision, plus Section 8.1(b), that Mr Appleby relies on the so-called economic factor rather than the disability suffered by the worker.

The hypothesis of this argument is completely contrary to the principles of Workers Compensation and the entitlement of a worker injured in the course of his employment to receive compensation for a permanent partial disability. The economic factors to which Mr Appleby refers are of course very relevant when it comes to compensation payable on periodical payments or by way of a lump sum. This aspect is referred to in the interpretation clause to which I have just referred. It is also referred to in the Clause following Section 8, namely Section 9. That provision deals with compensation in the case of temporary incapacity, and the provisions provide for compensation either by periodical payments or a lump sum or both in proportions relative to the claims and the injuries sustained. Thus there is specific provision for temporary incapacity but Mr Appleby is suggesting that for permanent incapacity there is no entitlement.

The Cook Islands Workers Compensation Ordinance is legislation which is quite different to the Workers Compensation Act in New Zealand, and also to the English legislation. Perhaps this has created some confusion as far as Mr Appleby is concerned, and his approach to the interpretation of this Cook Island legislation. However the principles of Workers Compensation and a worker's entitlement to receive compensation is preserved in this Cook Island legislation, even if abandoned in other countries. Mr Appleby's concern at the economic issues and the fact that the Plaintiff continues to work relate of course to the question of periodic payments, but do not relate to the lump sum entitlement for a certified injury.

For example, Section 8(1)(a) refers to an injury specified in the Second Schedule. There is no question but that a permanent partial incapacity resulting from a Second Schedule injury must be compensated for in accordance with the percentage provided in that Schedule. That provision applies irrespective of whether the injured worker returns to his former employment. One can easily envisage many cases where people have suffered Second Schedule injuries but continue with their previous employment. The hypothesis suggested by Mr Appleby requires differentiation of the provisions of Section 8(1)(a) from Section 8(1)(b). That is that a permanent partial incapacity resulting from a Second Schedule injury can be awarded a lump sum compensation in accordance with the Schedule percentage even though the injured worker returns to his former employment. On the other hand Mr Appleby suggests that a non Second Schedule injury, even though a permanent partial incapacity injury, where the same circumstances apply does not entitle the worker to any compensation. Such a proposition is completely contrary to the principles of Workers Compensation and is not in accordance with the Workers Compensation Ordinance.

While periodic payments and loss of earnings have an economic factor which has to be taken into account, here we have certified a permanent partial incapacity of between 40 and 50% as assessed by one doctor and 50% as assessed by a specialist orthopaedic surgeon.

The Plaintiff has suffered permanent partial incapacity. An assessment at 47½% based on the two doctors' assessments is reasonable. The calculations in accordance with the formula set out in the Workers Compensation Ordinance are correct and while not accepted by the Defendant, nevertheless the calculations are accepted as correct. Interest is certainly payable on this claim because of the unnecessary and unfortunate delay caused solely by the attitude adopted by the Defendant. The claim for costs is modest.

There will accordingly be judgment in favour of the Applicant for $22,435.28 payable by the Defendant.

DILLON J