Tuesday 12 April 2005
BORIS KOTEVSKI v ESSELTE AUSTRALIA PTY LIMITED
Judgment
1 TOBIAS JA: In this matter the appellant sued the respondent for damages in respect of injuries allegedly sustained by him as a result of the nature and conditions under which he was required to work whilst in the respondent's employ between 1988 and August 1999.
2 The appellant commenced his action by the filing of a statement of claim in the District Court on 22 November 2001. By its defence, the respondent relied upon s 151D(2) of the Workers Compensation Act 1987 (the Act) which provided as follows:
"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."
3 The respondent submitted before the primary judge that the appellant was entitled to rely only upon injuries received by him within the three years prior to 22 November 2001, that is, on and after 23 November 1998. After considering the medical evidence and assuming, without actually deciding, that the evidence given on behalf of the appellant was to be preferred, the primary judge held that the injuries complained of by the appellant were in fact sustained prior to 23 November 1998. Accordingly, as the appellant had failed to satisfy his Honour on the balance of probabilities that he had sustained any injury for which he was entitled to damages after 23 November 1998, it was held that his action was statute barred by s 151D(2) of the Act. The primary judge therefore entered judgment for the respondent. It is from that decision that the appellant appeals to this Court.
4 Before the primary judge the appellant sought to meet the respondent's reliance upon s 151D by calling in aid s 15(1) of the Act which, relevantly, provides as follows:
"(1) If an injury is a disease which is of such a nature as to be contracted by a gradual process:
(a) the injury shall for the purposes of this Act, be deemed to have happened:
(i) at the time of the worker's death or incapacity, or
(ii) if death or incapacity has not resulted from the injury - at which time the worker makes a claim for compensation with respect to the injury, and
(b) compensation is payable by the employer who last employed the worker in employment to the nature of which the disease was due."
5 It was common ground that the appellant was incapacitated for work on 13 August 1999. Accordingly, so the argument ran, s 15(1)(a)(i) deemed that date to be the date upon which the appellant's injury was received for the purpose of s 151D(2). It therefore followed that the proceedings were instituted within the relevant limitation period.
6 In support of the foregoing submission the appellant contended before the primary judge and this Court that the words in s 15(1)(a) "for the purposes of this Act" were unlimited in their scope and referred to the purposes of the Act as a whole including the purposes of Division 2 of Part 5 within which s 151D fell. On the other hand, the respondent contended that s 15 related only to a deeming of the date of the injury for the purpose of a claim for statutory compensation. It called in aid firstly, the fact that s 15 appears in Part 2 of the Act which is headed "Compensation - liability" and that s 15(1) makes specific reference to a worker claiming compensation with respect to the relevant injury: see s 15(1)(a)(ii) and (b).
7 It was further submitted that the other provisions in Part 2 were also wholly or in the main related to the payment of statutory compensation including, in particular, ss 16 and 17. Section 16, which relates to the situation where an injury consists in the aggravation, acceleration, exacerbation or deterioration of disease, is otherwise in identical terms to s 15. Section 17 follows a similar format in its relation to an injury constituted by loss of hearing. It is pertinent also to observe that the foregoing provisions were in the Act when it was originally enacted in 1987 when s 149, which commenced Part 5 of the Act and was headed "Common law remedies", in effect abolished the worker's right to recover common law damages from his or her employer in respect of any injury for which compensation was payable under the Act by that employer. This was remedied when the Act was amended in 1989 when Part 5 was replaced to provide for modified common law damages.
8 The respondent therefore submitted that the words "for the purposes of this Act" in its context referred to the purpose of a worker claiming statutory compensation under the Act. The primary judge accepted this submission in reliance upon the decisions of this Court in Hobbs v Costain Australia Limited (1995) 11 NSWCCR 56 and University of New England v Larsen-Walsh [2000] NSWCA 363.
9 In this Court the appellant submitted that the decisions in Hobbs and Larsen-Walsh supported his position as in those cases it was held that ss 17 and 16 respectively did not apply to deprive the relevant worker retrospectively of his common law right to damages for injuries receiving during the course of his employment. Accordingly, it was submitted that s 15 should apply in the present case in order to achieve the same result, namely, to avoid the appellant losing his common law right to damages by virtue of being statute barred under s 151D(2).
10 In oral submissions the appellant also relied upon the decision of this Court in OP Industries Pty Limited v MMI Workers Compensation (NSW) Limited (1998) 17 NSWCCR 193 where, by majority, it was held that the words "for the purposes of this Act" in clause 1 of Schedule 1 to the Act should not be narrowly construed so as to be confined to the provisions of the Act which related to the payment of statutory compensation.
11 Finally, the appellant submitted that, unless s 15 had the wide effect contended for, it would be difficult to apply s 151D(2) to an injury which was the subject of gradual onset particularly as ss 151G and 151H of the Act as it then stood, which provided thresholds and created tables for the calculation of claims, relied on the date on which the injury was received for the purposes of the assessment of damages under those provisions.
12 In Hobbs this Court was concerned with a claim for damages by a worker who had suffered hearing loss between 1961 and up to and after 30 June 1987. The question which arose in that case was whether a worker suffering from hearing loss, which was the result of negligent acts of his employer occurring prior to 4pm on 30 June 1987, could recover damages at common law for the losses and damages caused by those acts. The relevance of 4pm on 30 June 1987 was that pursuant to s 151U of the Act, Part 5 (which provided modified common law damages) did not apply to a cause of action in respect of an injury received by a worker at or before that time and date. Accordingly, if the injury was received prior to that date the unmodified common law rules relating to the assessment of damages applied.
13 Reliance was placed by the employer in Hobbs upon s 17 of the Act. Relevantly, that section provided that if an injury is a loss of hearing which is of such a nature as to be caused by gradual process, "for the purposes of this Act" the injury shall be deemed to have happened at the time when the worker gave notice of the injury which, in that case, was 27 July 1990.
14 Accordingly, it was submitted that the injury was deemed to have been received after 4pm on 30 June 1987 as a consequence whereof damages were to be assessed under the modified common law damages provisions of Part 5.
15 Cole JA, with whom Kirby P and Handley JA agreed, upheld the contentions advanced by the employer for the reasons expressed in those contentions. Relevantly it was contended that it could not have been the intention of the legislature enacting the 1989 amendments to the Act to have, in effect, discriminated against that category of workers constituted by those suffering from industrial deafness by placing them in a worse position in terms of the assessment of damages than other workers who had suffered an injury prior to 4pm on 30 June 1987. It was submitted that if s 17 were to have that effect, it would have provided so expressly. There was no justification for so construing the provisions of Part 5, so it was contended,
"merely because of the deeming provisions in s 17, particularly where s 151 required that the liability of the employer for such common law damages, existing as it did independently of the Workers Compensation Act, continued unless it was affected 'expressly' by a statutory provision in the amended Act."
16 The employer's contention in that case continued in these terms:
"Where s 17(1)(a) referred to 'for the purposes of this Act', the Legislature intended that section to have operation only in relation to claims for workers compensation. That was so because there was no need to give notice to complete a common law action for damages, and the section did not either expressly or by implication purport to deal with common law rights."