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.