Workers' Compensation and Injury Management Act 1981, s 93K

Gable v Steel Cap Recruitment Pty Ltd [2016] WADC 151

1. In this matter the plaintiff is a former employee of the defendant and by a writ filed on 21 February 2018 the plaintiff commenced proceedings against the defendant seeking damages for a number of injuries which he alleged were sustained during the course of his employment due to the negligence of the defendant. By a statement of claim filed on 26 February, the plaintiff fleshed out that claim and although the statement of claim is not in conventional form, it nonetheless establishes that the cause of action pursued by the plaintiff is that which I have described in the previous sentence.
2. By an application filed 27 March 2018 the defendant applied for a summary judgment against the plaintiff and that is the application with which I am concerned. The basis of the application is straight forward. The defendant alleges that the plaintiff has failed to comply with the provisions of s 93K(4) of the Workers' Compensation and Injury Management Act 1981 as a consequence of which he is precluded from receiving any award or damages in the action he has commenced and the court should therefore intervene and dismiss the action summarily.
3. It is common ground that the plaintiff was a former employee of the defendant and that the injuries for which he seeks damages were sustained during the course of his employment. In deciding the matter, I am of the view that I cannot improve on the analysis which I provided Gable v Steel Cap Recruitment Pty Ltd [2016] WADC 151. In that case I said:

In this action the plaintiff claims for damages for injury which he received during the course of his employment with the defendant. As a consequence of that relationship the provisions of the Workers' Compensation and Injury Management Act 1981 apply. In particular the provisions of s 93K are relevant and subsection 4 of that section is in the following terms:

(4) Damages in respect of an injury can only be awarded if -

(a) the worker elects, in the manner prescribed in the regulations, to retain the right to seek the damages; and

(b) the Director registers the election in accordance with the regulations; and

(c) court proceedings seeking the damages are commenced after the Director gives the worker written notice that the Director has registered the election; and

(d) the court is satisfied that the worker's degree of permanent whole of person impairment is at least 15%.

1. It will all be seen from the provisions which I have quoted that necessary preconditions to an injured worker obtaining damages from his employer by action in this court are that he elects to retain the right to seek damages, that election is registered in accordance with the regulations and the court proceedings seeking the damages are commenced after the director gives notice that he has registered the election. In the present circumstances it is common ground that:

(1) the plaintiff is a worker within the meaning of the Act and the defendant was at the relevant time his employer.

(2) the worker has made no election to retain the right to seek common law damages and as a consequence there has been no registration of that election nor written notice that the election has been registered.

1. Satisfaction of these requirements is a precondition to the court being empowered to grant to the plaintiff the remedy which he seeks namely compensation in respect of an injury.
2. The facts of the case are effectively identical to those which prevail here. In the present case there is no doubt that the election has not been made, nor registered. The consequence of that failure is to preclude the plaintiff from obtaining the damages he seeks.
3. The plaintiff for his part advances a number of reasons which he says should persuade the court that he has an excuse for failing to comply with the provisions of s 93(4) and should be allowed to proceed with his action.
4. Although there is a provision under s 93N to extend the termination date, the plaintiff did make an application for an extension on the basis that his condition had not stabilised sufficiently and a substantial extension to the termination date was granted. Notwithstanding that extension an election was not made within the time required. There is also a provision under s 93C(6) which again, in appropriate circumstances, could provide for an extension if the requisite medical evidence was produced to the director. Even if the evidence was provided, the automatic extension provided by subsection 6 would have long since expired.
5. Apart from the provisions which I have mentioned, I see no basis for an extension of time which would permit the plaintiff to register an election and proceed with the present action. The first point to make is that the power to make an extension is vested in the director, not the District Court, and secondly the provisions of the Act make it clear that the election and its registration must be in place as a pre-condition of the awarding of damages and as a consequence even if an extension could be granted, and even if an election and registration could be made by this plaintiff it would not salvage the present action. For these reasons I am of the view that the plaintiff in the present action has no prospect whatever of obtaining an award of damages from his employer in this action and at that the summary judgment application which has been brought by the defendant should succeed.
6. There are however three appeals to this court from decisions made within the workers' compensation jurisdiction the outcome of which, may,not will, provide the plaintiff a further opportunity to pursue a claim for damages. Accordingly, I consider the appropriate order is to strike out the action rather than dismiss it.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.