Benton v QBE Workers Compensation

Time limit for commencement of court proceedings against employer for damages (2) A person to whom compensation is payable under this Act is not entitled to commence court proceedings for damages in respect of the injury concerned against the employer liable to pay that compensation more than 3 years after the date on which the injury was received, except with the leave of the court in which the proceedings are to be taken. 6Section 151H relevantly provides:

No damages unless permanent impairment of at least 15% (1) No damages may be awarded unless the injury results in the death of the worker or in a degree of permanent impairment of the injured worker that is at least 15%. 7It is common ground that the plaintiff had no such entitlement until 3 May 2010 when a complying agreement pursuant to section 66A was executed. This provided for a 16 percent WPI. These proceedings were commenced within three years of the complying agreement and the plaintiff's primary submission is that for this reason they were commenced within time because time did not start to run until his WPI had been determined. 8The plaintiff relied upon a decision of Justice Adamson in OPOKU v P & M QUALITY SMALLGOODS PTY LTD (2012) NSW SC 478, and this decision, in respect of which there was no appeal, was the focus of the written submissions. The plaintiff relied in particular upon [62] and [63] where Her Honour stated: By reason of s 151H of the Workers Compensation Act 1987, the plaintiff could not bring a claim for damages in negligence against his employer unless and until he had met the threshold requirement that he suffer a permanent impairment of at least 15%, which was a matter that needed to be assessed. This assessment was not resolved until October 2008 (by a Complying Agreement under s 66A of the Workers Compensation Act which, curiously, identifies the plaintiff's employer did not accrue until that date. The plaintiff's claim against Kaybron 6 was brought within time because it was brought within three years of the assessment of his permanent impairment, being the date on which his cause of action against Kaybron 6 accrued. 9On this basis the plaintiff contended that section 151D did not preclude him from commencing these proceedings because they were commenced within three years of the complying agreement establishing the 15% threshold required under section 151H. 10The court accepts that the present factual scenario is not relevantly distinguishable from that which arose in OPOKU. It was therefore submitted on behalf of the plaintiff that this court ought adopt the reasoning in that decision although the plaintiff conceded that this court is not bound by it. 11For the reasons set out in the annexure to the plaintiff's submissions and the authorities referred to, the plaintiff acknowledged that a decision of a single Supreme Court judge does not bind a District Court judge because no appeal lies from a judge of the District Court to a single judge of the Supreme Court, in other words, the courts are not in the same hierarchy. 12In further exposition of the principles of stare decisis, the defendant referred to passages in CHIEF EXECUTIVE OFFICER OF CUSTOMS v TONY LONGO PTY LIMITED NSWCA 147, which was also referred to in the plaintiff's submissions. In particular the defendant referred to [51] where Heydon JA said: In Business World Computers Pty Limited v Australian Telecommunications Commission (1998) 82 ALR 499 at 504, Gummow J, sitting as a primary judge, rejected a submissions that the Federal Court of Australia either at first instance or on appeal "was bound by considered statements of principle in decision of single justices of the High Court exercising its original jurisdiction". He said: "Whilst of course such decisions are deserving of the closet and most respectful consideration, I believe [the] submission is incorrect. Stare decisis involves courts being bound by appellate decisions of courts standing above them and in the same hierarchy. A decision of a single justice of the High Court is not such a decision. I refer to what was said, albeit with reference to the position of an intermediate court of appeal in relation to judgments of single justices of the High Court, in Bone v Commissioner of Stamp Duties [1972] NSWLR 651 at 654 and 644. In that case Jacobs P said at 654 of a decision of Owen J in the original jurisdiction of the High Court: That decision is naturally entitled to the greatest respect. It is of its nature a most persuasive precedent, but it is not a precedent which is binding upon this Court. It was not a decision given by Owen J when sitting as a member of a court in the framework of the appellate structure of which this Court is part. Hope JA said at 664: A decision of a Justice of the High Court sitting at first instance is of course of the greatest persuasive authority for this Court, but this Court is not bound to follow it, and since the decision is challenged, it becomes necessary to decide whether the construction placed upon the agreement by Owen J was the correct one. 13It is also clear from the authorities that whilst a judgment of a single judge of the Supreme Court is not binding on this court it ought be regarded as persuasive and given proper weight and respect. It follows that the court accepts that the decision in OPOKU ought be followed unless there is a compelling reason not to do so, given that its correctness is challenged. 14It was submitted on behalf of the plaintiff that:

• it is highly desirable that uniformity of decision be promoted;
• there is no doubt that the judgment in OPOKU has gained a certain currency and has been applied in a number of cases in the District Court; and,
• it should therefore be followed unless and until it is overturned by the Court of Appeal. 15There have also been a number of cases in this court where OPOKU has not been followed. Three such decisions are referred to in paragraphs 18 and 19 of the defendant's submissions. For these reasons the principles of judicial comity are a neutral factor and this submission does not advance the plaintiff's position. 16Further, in paragraph 19 of the submissions the plaintiff urged the court to follow OPOKU because it would put an end to the limitation issue in this case and was therefore in the spirit of section 56 of the Civil Procedure Act 2005 as to the just quick and cheap resolution of proceedings. This application requires the court to decide whether or not it ought follow the decision in OPOKU and the court does not consider that this submission constitutes a proper basis for following Her Honour's decision given the question which the court is required to determine. 17The principal difficulty which the OPOKU decision poses for this court is that in [63] Her Honour makes reference to the date on which the plaintiff's cause of action accrued whereas section 151D makes it clear that the three year limitation period runs from the date on which the injury was received. 18There is no reference to section 151D in Her Honour's judgment in particular at paragraphs 62 and 63. It was submitted on behalf of the plaintiff that the reality is that Her Honour must have had such provisions in mind because she referred at paragraph 63 to the three (3) year period, which is the period mentioned within section 151D. In the circumstances, it was submitted, it is inconceivable that Her Honour would not have been referred to section 151D during the course of the hearing. 19As the court reads the relevant passages in the judgment relied on they do not seem to contain any statement of principle and the process by which Her Honour came to the conclusion she did is not entirely clear. It is not possible to know to what extent concessions were made and issues arising under section 151D and 151H were ventilated during the course of the hearing and whether or not such concessions or submissions were appropriate having regard to the legislation. 20This court is not prepared to speculate as to what sections Her Honour may or may not have been referred given that there is no specific reference in the judgment to section 151D. If Her Honour had been referred to this section Her Honour did not explain why, despite the wording of the section, a different test for determining the limitation period was applied because of section 151H. In particular Her Honour does not explain why the words date on which the injury was received in section 151D ought be read as synonymous with date on which the cause of action accrued if that is what was decided. 21The following submission was also made on the plaintiff's behalf: 17 Further, with respect, the decision in Opoku appeals to common sense. If the position is that a Plaintiff must meet a threshold before being able to commence proceedings, and proceedings are commenced within three (3) years of satisfying the threshold, as required by the specific "time allowed for commencement" provision, then it is reasonable to say that the proceedings are within time, vide paragraph 63 of Opoku. 22The difficulty with this submission is that this is not what section 151D says. Section 151H deals with a different matter namely the threshold for an entitlement to work injury damages. 23There are a number of decisions of the Court of Appeal where the wording of section 151D has been considered. Some of these decisions were discussed by Judge Gibson of this court in PARRY v MASTERPET AUSTRALIA PTY LIMITED [2013] NSWDC 71 where Her Honour was dealing, inter alia, with an issue similar to that presently before the court. At paragraphs [27] - [35] Her Honour discusses decisions of the Court of Appeal where section 151D was interpreted to mean that time runs from the date of physical injury. The defendant submitted that in some of those cases the limitation issue adjudicated upon by the Court of Appeal would have been otiose if the position taken by Justice Adamson were correct. 24With the greatest of respect to Justice Adamson, on its face the relevant part of the decision in OPOKU would appear to be contrary to the wording of section 151D which is, in my view, clear. 25For these reasons the court declines to follow OPOKU and concludes that the relevant date for the purposes of time running under section 151D is the date of injury, namely 27 October 2003. It follows that the limitation defence pleaded by the defendant has a proper basis and that paragraph 1 of the plaintiff's notice of motion as amended should accordingly be dismissed. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 July 2013