Workers' Compensation and Rehabilitation Act 1981

Re Monger; Ex Parte Woodford [1999] WASC 273

1 NISBET DCJ: By a writ of summons issued 9 February 2000 the plaintiff claims damages against the first defendant as owner, occupier and operator of the Mount McClure Gold Mine near Leinster arising out of injuries he says he sustained there on 28 September 1998. The claim against the first defendant is brought by reason of the alleged breaches of the first defendant's duties said to be owed to the plaintiff in its capacity as occupier of the mine site.

2 The plaintiff's claim is brought against the second defendant as the plaintiff's employer at the mine. It is a claim for damages and whilst it is not properly pleaded it is fair to say that sufficient can be discerned from the statement of claim to appreciate that the claim is said to arise by reason of the second defendant's breach of the duty of care it owed as employer, to the plaintiff as employee, to provide the plaintiff with a safe place of work. Relevantly no relief is sought from either defendant save for damages and interest on damages and costs.

3 The second defendant brought an application before the Deputy Registrar of this Court seeking to have the action dismissed by reason of the plaintiff's failure to comply with the provisions of s 93E of the Workers' Compensation and Rehabilitation Act 1981 ("the Act"). Whilst it wasn't put in this way it is obvious that what the second defendant was submitting was that by reason of the provisions of s 93E of the Act the plaintiff was required to plead he had satisfied one or other of the conditions set out in s 93E(3)(a) or (b) of the Act. Then, the second defendant in effect argued, in the circumstances where the plaintiff conceded that he had not yet satisfied either of the conditions in s 93E(a) or (b) of the Act, he had no cause of action and his claim against the second defendant should be dismissed. The Deputy Registrar disagreed and dismissed the second defendant's application to strike out the writ of summons by order made 8 March 2000 and it is from that order that the second defendant brings this appeal to me which, of course, is by way of rehearing.

4 Section 93E of the Act is contained within Division II Part IV which is headed "Constraints on Awards of Common Law Damages". This division was inserted into the Act by amendment enacted in 1993. Parliament's apparent intention in passing this legislation was to limit workers' rights to damages for injuries sustained during the course of their employment by reason of their employers' breach of long recognised duties of care owed by employers to employees. Part of the original amending enactments was the provision of s 93D of the Act which required a worker to come to this Court and obtain leave to institute proceedings for damages (s 93D(4)). It was further provided (s 93D(1)) that: "Damages can only be awarded if the disability results in the death of the worker or it is a serious disability."

5 Parliament, with a view to making a worker's task in obtaining damages for injuries received by reason of an employer's negligence even more difficult repealed s 93D, s 93E and s 93F of the Act and by Act No 34 of 1999 re-enacted them in significantly re-cast form. Importantly, the legislature left intact the provisions of s 93C. That reads as follows:

If this Division applies a court is not to award damages to a person contrary to this Division."

6 Relevantly for the purpose of this appeal the new s 93E(3) provides as follows:

(a) it is agreed or determined that the degree of disability is not less than 30% and that agreement or determination is recorded in accordance with the regulations or;

(b) the worker has a significant disability and elects, in the prescribed manner, to retain the right to seek damages and the election is registered in accordance with the regulations."

7 Hence, to use the language of the polemic, Parliament has provided two gateways to a worker's path to an award of damages at common law, namely those described in s 93E(3)(a) and (b) above.

8 The second defendant argued that in this case where the plaintiff acknowledged that there was no agreement or determination that his degree of disability was not less than 30 per cent much less that it had been recorded and, further, that he had made no election which had been registered in accordance with the regulations, then (says the second defendant) the plaintiff could not obtain damages because of non-compliance with the Act and the action is bound to fail. Put another way the second defendant argued in effect that compliance with s 93E(3) must be pleaded to ground the cause of action. Put another way again, the second defendant argued that a cause of action for damages for negligence is not perfected until the provisions of s 93E(3) of the Act have been complied with.

9 I disagree. The legislature knows the difference between the institution of proceedings and the award of damages. Section 93D(4) in the repealed provision makes this plain enough. Here the legislature has left s 93C in full force and effect and additionally enacted s 93E(3) in terms where its opening words, I repeat, are: "Damages can only be awarded if - ...".

10 It is, of course, trite to say as Stapleton wrote in "The Gist of Negligence" 104 LQR 213, 389 that the gist of the action of negligence is damage (although some commentators use the wider "injury"). But Parliament is not saying that a worker has no cause of action for damages for negligence unless the provisions of s 93E(3) are met, it is simply saying that a court may not award damages unless the provisions of the Act are complied with. And for this appeal to succeed the second defendant must show that it was Parliament's intention to remove the cause of action itself or so alter it that it could not be said to lie without the addition of some other necessary element before the cause was perfected in law. In my opinion it is abundantly clear that Parliament has not chosen this course.

11 I find considerable support for my views in the decision of Justice McKechnie in Re Monger; Ex Parte Woodford [1999] WASC 273. Counsel for the second defendant put considerable emphasis on this authority in her submissions in support of her argument. There his Honour was dealing with an application for an order nisi for a writ of mandamus compelling the Director of the Conciliation and Review Directorate to accept for lodgement the election lodged on behalf of the prosecutor to retain his right to seek common law damages. The respondent refused to accept the form of election because the prosecutor had not reached agreement as to the degree of his disability with his employer nor had there been a determination of the degree of his disability pursuant to the provisions of the Act. The prosecutor was attempting to strike down the regulation upon which the respondent relied in refusing to register the notice of election as being an invalid exercise of the regulation making power and, whilst it is not clear, this was presumably on the basis that it was inconsistent with the primary expression of Parliament's intention, namely, the Act. In dealing with the prosecutor's argument his Honour said at [26]:

"The opening words of s 93E(3), 'Damages can only be awarded if -' are an expression of Parliamentary prescription, principally to a judicial officer hearing a common law claim for damages. The court cannot find that a worker has a significant disability. Only if the provisions of s 93E(4) are fulfilled can it be said that a worker has a significant disability."

12 Clearly then his Honour too (with respect) recognised the distinction between a legislative provision which went to the cause of action itself and one which went to the grant of relief.

13 Accordingly, in my opinion there is nothing to prevent a plaintiff employee instituting proceedings in this Court seeking damages for negligence against his or her employer.

14 Should the action proceed to trial and the trial reach its conclusion without there having been a determination pursuant to the provisions of s 93E(3) of the Act then a court may not award damages. There is nothing however to prevent a worker from seeking other relief such as a declaration or even perhaps an injunction or exemplary damages (these being expressly excluded from the definition of damages by the provisions of s 93A(3)).

15 I should not leave this matter without recording some view on the second defendant's arguments which addressed the policy behind the legislation. It was put emphatically by counsel for the second defendant that Parliament's intention was to fetter workers' claims to a greater degree than they had been previously by the former s 93D provisions which, she said, Parliament had found were causing undue expense to employers without achieving any noticeable decline in workers' claims for damages. This may very well be so and it is not for me to comment on the arguments which address those policy considerations. What I can see, however, as was recognised by Justice McKechnie is that there are many reasons why Parliament would not have wanted to make a worker's cause of action for damages for the negligence of an employer conditional upon compliance with s 93E(3). What for example if a limitation period was about to expire? This could be brought about by any number of circumstances beyond the control of a worker. A worker, earnestly seeking to have the nature and degree of his disability determined in accordance with the legislation, could find medical opinion differing, could find medical opinion urging a "wait and see" approach, could see medical opinion urging further operative intervention or a series of operations the result of which would not be known for some years, all of which suggests to me that the existence of the cause of action itself has not been affected by this legislation.

16 This is not to say that in an appropriate case a court would not order a stay of proceedings thus instituted until the provisions of s 93E(3) had been complied with on the basis that if it was to permit the common law action to proceed it would run up against the court's rules and practice directions which are intended to promote a timely disposition of matters before it, such as then would result in unnecessary wasted effort and expense. It would all be a matter of balance. Some of the questions which could arise would be those that have often been dealt with when courts consider whether or not their process is being abused and indeed the second defendant here argued as a second limb to its argument that to permit this action to go forward in the circumstances as they presently exist would be an abuse of the court's process. There may be occasions when that will be the case. However as that argument was not expressly addressed in the submissions filed on behalf of the second defendant nor in the argument of the parties except as to discussion of an appropriate remedy in proper circumstances, I am not in a position to decide whether I should grant a stay or not. I do not know for example the state of the proceedings in the Conciliation and Review Directorate, I do not know the state of the plaintiff's medical condition and how soon it is likely to be resolved, I have no idea of how he categorises his disability and the like.

17 Accordingly, it cannot be said that this action is doomed to failure or that this is a plain and obvious due for striking out (or summary dismissal).

18 In the circumstances the safest course is for me to dismiss the appeal, which I do, and I will hear the parties as to costs. Should the second defendant wish to make application for a stay of proceedings in due course then it is at liberty to do so.