Thompson v Kimberly-Clark Australia P/L

Supreme Court of NSW|2004-10-28|Before: Kimberly-Clark Australia P

CITATION : Thompson v Kimberly-Clark Australia P/L [2005] NSWSC 172

DECISION : (1) The defendant's notice of motion filed 7 September 2004 is dismissed; (2) The defendant is to pay the plaintiff's costs as agreed or assessed.

CATCHWORDS : Dismiss statement of claim - claim under Chapter 7, Division 2 of the Workplace Injury Management and Workers Compensation Act 1998

Compensation to Relatives Act 1987 (NSW) Motor Accidents Compensation Act (1999) (NSW) LEGISLATION CITED : Workers Compensation Act 1987 (NSW) - s 151G & H Workplace Injury Management and Workers Compensation Act 1998 (NSW) - Chapter 7

Emad Trolley pty Ltd v Shigar [2003] NSWCA 231 Allizanz Australia Insurance Limited v GSF Australia Pty Limited [2003] NSWCA 174 CASES CITED : GLG Australia Pty Ltd v The Nominal Defendant & Ors [2004] NSWCA 116 Pender v Power Coal [2002] NSWSC 925 Prospect County Council v Foster & Anor [2001] NSWCA 117

Rosalina Bastolini Thompson (Plaintiff) PARTIES : Kimberly-Clark Australia Pty Ltd (Defendant)

Mr D R Toomey (Plaintiff) COUNSEL : Mr I S Judd (Defendant)

Mr R Ignatic, McClellands (Plaintiff) SOLICITORS : Mr B McLean, Hunt & Hunt (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20183/2004 - ROSALINA BASTOLINI THOMPSON v KIMBERLY-CLARK AUSTRALIA PTY LTD

JUDGMENT (Dismiss statement of claim; claim under Chapter 7, Division 2 of the Workplace Injury Management and Workers Compensation Act 1998) 1 MASTER: By notice of motion filed 7 September 2004 the defendant seeks an order that the plaintiff's statement of claim filed 21 May 2004 be dismissed. The issue is whether under Chapter 7, Division 2 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (WIMWC Act) the plaintiff is obliged to make a claim prior to commencing these court proceedings. 2 The plaintiff is Rosalina Bastolini Thompson and is the widow of Mark Steven Thompson who died on 22 October 2001 following injuries received in the course of his employment with the defendant. Mr Thompson was employed by the defendant as a production operator. On 22 October 2001, it is alleged that Mr Thompson was standing by a Hydra-Pac baling machine when the bale restraining door opened under pressure and the door struck the Mr Thompson in the chest and abdomen causing him injury from which he died shortly thereafter. The plaintiff's action is brought on her own behalf for nervous shock and as executrix of the estate of the deceased on behalf of the dependants of the deceased pursuant to the Compensation to Relatives Act 1987 (NSW) (CRA). 3 The starting point is s 151G of the Workers Compensation Act 1987 (NSW) (WCA) which reads: "Only damages for past and future loss of earnings may be awarded (1) The only damages that may be awarded are: (a) damages for past economic loss due to loss of earnings, and (b) damages for future economic loss due to the deprivation or impairment of earning capacity. (2) This section does not apply to an award of damages in an action under the Compensation to Relatives Act 1897." 4 Thus, a claim under the CRA is not limited to damages for past and future earnings. 5 Section 151H of the WCA 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%.

(4) The degree of permanent impairment that results from an injury is to be assessed as provided by this section and Part 7 (Medical assessment) of Chapter 7 of the 1998 Act.

..." 6 Thus, the degree of permanent impairment that results from the injury is to be assessed as provided by Part 7 of Chapter 7 of the WIMWC Act.

WIMWC Act 7 Chapter 7 of the WIMWC Act "New Claims Procedure" and is divided into 10 Parts. This Chapter sets out a statutory regime, starting with the applicant giving the employer notice of injury and making a claim for compensation for damages. The applicant is obliged to undertake a pre-filing procedure which includes mediation. Chapter 7 is divided into Parts 1 and 2. Part 1 is preliminary and contains two sections namely, ss 250 and 251. Part 2 is divided into divisions headed "Giving Notice of Injury and Making a Claim". Part 2 is divided into Division 1 - "Notice of Injury" and Division 2 - "Making a Claim for Compensation or Damages". Part 3 is entitled "Dealing with Claims". Division 4 is headed "Claims for Lump Sum Compensation and Work Injury Damages". More relevantly, Part 6 is headed "Special Proceedings for Work Injury Damages". Division 1 of Part 6 is preliminary. Division 2 is headed "Threshold for Award of Damages". Division 3 refers to pre-filing statements and Division 4 refers to "Mediation". 8 Section 250 is contained in Chapter 7, preliminary Division 1 reads: "250 Interpretation

(1) In this Chapter: damages has the same meaning as in Part 5 (Common law remedies) of the 1987 Act. …

Note. Part 18C of Schedule 6 to the 1987 Act provides for the transfer of existing claims, so that the claims transferred will be treated as new claims. … work injury damages means damages recoverable from a worker's employer in respect of: (a) an injury to the worker caused by the negligence or other tort of the employer, or (b) the death of the worker resulting from or caused by an injury caused by the negligence or other tort of the employer, whether the damages are recoverable in an action for tort or breach of contract or in any other action, but does not include motor accident damages.

(2) In the definition of work injury damages in subsection (1), a reference to a worker's employer includes a reference to: (a) a person who is vicariously liable for the acts of the employer, and

(b) a person for whose acts the employer is vicariously liable. (3) A claim served on an insurer in accordance with the WorkCover Guidelines or forwarded to an insurer by the employer is taken to have been made on the insurer (and to have been so made when it was made on the employer). 9 It is common ground that the plaintiff is claiming "work injury damages" as defined in this section. 10 Section 260 provides: "How a claim is made

(1) A claim must be made in accordance with the applicable requirements of the WorkCover Guidelines.

(2) The WorkCover Guidelines may make provision for or with respect to the following matters in connection with the making of a claim: (a) the form in which a claim is to be made,

(e) requiring specified documents and other material to accompany or form part of a claim,

(f) such other matters as may be prescribed by the regulations.

(3) Without limiting this section, the WorkCover Guidelines can require that a claim be accompanied by a form of authority signed by the claimant and authorising a provider of medical or related treatment, hospital treatment or occupational rehabilitation services to the claimant in connection with the injury to which the claim relates to give the insurer concerned information regarding the treatment or service provided or the worker's medical condition or treatment relevant to the claim.

(4) The WorkCover Guidelines can also provide for any of the following matters in connection with the making of a claim: (a) waiving the requirement for the making of a claim in specified cases (such as cases in which notice of injury has been given or provisional weekly payments of compensation have commenced),

(b) providing for the time at which a claim is taken to have been made in any case in which the requirement for the making of a claim has been waived,

(c) providing for the time when a claim is taken to have been made in a case in which requirements of the Guidelines with respect to the making of the claim have been complied with at different times. (5) The failure to make a claim as required by this section is not a bar to the recovery of compensation or work injury damages if it is found that the failure was occasioned by ignorance, mistake or other reasonable cause or because of a minor defect in form or style.

(6) Except to the extent that the WorkCover Guidelines otherwise provide, an insurer can waive a requirement of those Guidelines with respect to the making of a claim on the insurer.

(7) The WorkCover Guidelines can require an insurer to notify a worker of any failure by the worker to comply with a requirement of those Guidelines with respect to the making of a claim, and can provide for the waiver of any such failure by the worker if the insurer fails to give the required notification." 11 Turning to the New South Wales Guidelines, which came into effect on 1 January 2002, specify the minimum information required to make a claim in accordance with s 260 of the WIMWC Act. The Guidelines states "[a] declaration must be signed by the worker". "Worker" is defined in s 4 of the WIMWC Act as: "a person who has entered into or works under a contract or service or a training contract with an employer (whether by way of manual labour, clerical work or otherwise, and whether the contract is expressed or implied, and whether the contract is oral or in writing). However, it does not include: (a) a member of the Police Service who is a contributor to the Police Superannuation Fund under the Police Regulation (Superannuation) Act 1906, or

(b) a person whose employment is casual (that is for 1 period only of not more than 5 working days) and who is employed otherwise than for the purposes of the employer's trade or business, or

(c) an officer of a religious or other voluntary association who is employed upon duties for the association outside the officer's ordinary working hours, so far as the employment on those duties is concerned, if the officer's remuneration from the association does not exceed $700 per year, or

(d) except as provided by Schedule 1, a registered participant of a sporting organisation (within the meaning of the Sporting Injuries Insurance Act 1978) while: (i) participating in an authorised activity (within the meaning of that Act) of that organisation, or (ii) engaged in training or preparing himself or herself with a view to so participating, or (iii) engaged on any daily or periodic journey or other journey in connection with the registered participant so participating or the registered participant being so engaged, if, under the contract pursuant to which the registered participant does any of the things referred to above in this paragraph, the registered participant is not entitled to remuneration other than for the doing of those things. 12 There are no decided cases on the interpretation of this definition. 13 In Emad Trolley Pty Ltd v Shigar [2003] NSWCA 231 McColl JA (with whom Hodgson and Meagher JJA agreed) provided instructive reasoning in relation to s 108 of the Motor Accidents Compensation Act (1999) (NSW) (MAC Act). Section 108 of the MAC Act provides "that a claimant is not entitled to commence court proceedings against another person in respect of a claim" unless certain certificates have been issued by claims assessors. 14 At paragraphs 73 to 78 her Honour said: "73 In Baker v Rothmans of Pall Mall (Australia) Ltd (1999) NSWCCR374 Giles JA (with whom Sheller JA and Davies AJA agreed) held, applying Hill v Bolt , that s 106E(1) of the Workers Compensation Act 1987 which then provided that a worker "cannot commence court proceedings in respect of compensation under s 66" until certain statutory requirements had been fulfilled was a mandatory express prohibition. Proceedings commenced in contravention of that prohibition were, therefore, not valid. His Honour construed the provision as part of a scheme to promote the settlement of claims before commencement of court proceedings. Failure to construe the section as mandatory would undermine its purpose within that scheme.

74 In Akhrass v Allianz Australia Insurance Ltd [2002] NSWSC 772 Dunford J held without referring to Hill v Bolt and Baker v Rothmans of Pall Mall (Australia) Ltd that proceedings which were improperly commenced in contravention of s 108 could not be revived when an exemption certificate was issued.

75 Consistently with these authorities, the expression "a claimant is not entitled to commence court proceedings…" appearing in s 108 of the MAC Act 1999 should be interpreted as mandatory in nature.

76 The provisions of the MAC Act 1999 I have set out earlier in this judgment indicate a strong intention on the part of the legislature that any claim in respect of an injury or death which arises from a motor accident is to be resolved expeditiously through the assessment process rather than court proceedings. That interpretation is consistent with the purposes of the scheme outlined during the Second Reading Speech as being, among others, to resolve "claims early, outside the court system and in a non-adversarial manner": Motor Accidents Compensation Bill , Second Reading Speech, Legislative Council, 3 June 1999, Hansard p 901 at 904. Indeed it is clear that the MAC Act 1999 both continued and strengthened the policy introduced by the Motor Accidents Act 1988 to encourage early and prompt settlement of claims: see Hill v Bolt at 332, 335 - 6 (per Priestley JA); Salido v Nominal Defendant (1993) 32 NSWLR 524 at 530 (per Gleeson CJ), 538 (per Kirby P).

77 Construing s 108 as mandatory is consistent with the legislative scheme. The clear intention of the legislature in prohibiting the commencement of proceedings until Part 4.4 is complied with is to ensure that a claimant first submits his or her claim to assessment rather than to the judicial process. Indeed, even if a s 94 certificate has been issued and proceedings have been properly commenced, where significant evidence is adduced in the course of the court proceedings that was not made available to the claims assessor, the court is required to adjourn the proceedings until the party who has adduced that evidence has referred the matter for further assessment under Part 4.4 and a further certificate under s 94 has been issued (s 111). This over-riding obligation to submit claims to the process of claims assessment reinforces, if reinforcement be necessary, the legislature's intention that the assessment process should be pre-eminent.

78 In my view the legislative scheme should be interpreted consistently. Just as a third party insurer cannot escape liability under the CTP policy issued pursuant to the scheme (see s 10) by seeking to categorise the circumstances in which an injury took place as caused by breach of an employer's duty of care rather than a "motor accident" as defined so, too, a plaintiff should not be able to avoid the legislative consequences of having suffered "injury" in a "motor accident" by the device of pleading his case as arising from a breach of his employer's duty of care. Interpreting the MAC Act 1999 in this manner is consistent with the legislative purpose. It is also consistent with principles of statutory interpretation." 15 In Emad it was an injured worker who chose to frame his pleadings so as to avoid the operation of the MAC Act. In the present case, the plaintiff is not the worker, but rather his widow. Further, it is common ground that the plaintiff is claiming "work injury damages" as defined by the WIMWC Act, and is not seeking to avoid its operation. The defendant also relied upon Prospect County Council v Foster & Anor [2001] NSWCA 117, Pender v Power Coal [2002] NSWSC 925, Allianz Australia Insurance Limited v GSF Australia Pty Limited [2003] NSWCA 174 and GLG Australia Pty Ltd v The Nominal Defendant & Ors [2004] NSWCA 116. Like Emad these cases may be distinguished as they all involve the injured worker being the plaintiff within the MAC Act. 16 The WIMWC Act makes it clear matters involving work injuries covered by this Act must be attempted to be resolved through a claims process before proceeding to court. The Guidelines and the WIMWC Act do not provide for the dependants of the worker, as defined in the WIMWC Act to make a claim or sign the declaration. The definition of "worker" in the WIMWC Act is clear. There is no reason to impute a further meaning to the term. While it may be a legislative oversight, that dependants of the worker are not included in the class of person who are required make a claim at the present, it is the worker who must make the claim, and there is no requirement for someone else to make it in the case of the worker's death. The widow was entitled to file the statement of claim. The defendant's notice of motion filed 7 September 2004 is dismissed. 17 Costs are discretionary. Costs usually follow the event. The defendant is to pay the plaintiff's costs as agreed or assessed.

(1) The defendant's notice of motion filed 7 September 2004 is dismissed.

(2) The defendant is to pay the plaintiff's costs as agreed or assessed. **********

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.

Compensation to Relatives Act 1987(NSW)

H Workplace Injury Management and Workers Compensation Act 1998(NSW)

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