His Lordship went on to observe:
"Thus statutes which deal with procedural or evidential requirements, such as the Statute of Frauds or the Public Authorities Protection Act, 1893, may in some cases be the subject of waiver, though even in Acts of that character considerations of the purpose of the particular statute may exclude waiver or contracting out. But such Acts are far removed from an imperative public enactment such as s 557, which governs the position of a State Department and State servants."
84 The WIM Act governs, in a complex array of provisions, the processes by which workers are to access their entitlements following a work place injury. It places obligations on both workers and employers. The WCA governs the entitlements of a worker who has suffered a workplace injury. The social and public policy in enacting both the WIM Act and the WCA is well known. The public purpose in limiting small claims was to secure the economic viability of insurers. There is also a public purpose in the legislation in its attempts to achieve the proper medical treatment of injured employees, their return to work, the expeditious assessment of their claims, and the settlement of claims so far as practicable.
85 However, notwithstanding the clear policy objectives underlying it, the combined operation of both Acts focuses upon the processes by which individuals may access certain statutory entitlements and the manner in which the employer is to deal with claims for those entitlements. In other words, the legislation regulates the private rights of both employees and employers by processes and procedures designed to achieve the objects of the Act. The legislation here, therefore, is quite different from the legislation considered in Admiralty Commissioners v Valverda, where the consent of a public official was required for the prosecution of a claim.
86 Whilst the scheme of the legislation is such as to call for a series of sequential procedural steps, each intended to be complied with, I can see no relevant difference, as a matter of principle, in an employer being prepared not to plead a limitations provision, to not insisting, for example, on a pre-filing statement. If a medical assessment certificate is only conclusive in relation to the proceedings for which it was obtained, there seems no reason in principle why a party must bring a lump sum compensation claim at least at the same time as bringing the work place injury claim, at the risk of being barred from bringing a claim for workplace damages. Even on the construction I have preferred of s 326, a party could still have a medical assessment and use the certificate only in the work place injury claim. Whilst the mediation provisions might arguably be more directed to the public policy of cheaper resolution of disputes, it is not apparent to me that a failure to mediate would make the proceedings not maintainable in any circumstance.
87 It follows, therefore, that I would reject the claimant's contention that the opponent's claim was not maintainable as no claim for lump sum compensation was brought before or at the same time as the claim for work injury damages. However, that does not mean that the claimant cannot plead, in response to a claim for work injury damages, that there has been non-compliance with the procedures and processes specified in the legislation. Just as a defendant may plead a statute of limitations, it may plead non-compliance with the legislation. In Berowra Holdings, the plurality judgment stated, at [38], (see above at [81]) that in respect of a time provision, a court was required to deal with any such application in accordance with ordinary discretionary principles that may depend on many different factors.
88 On the construction I have given to the legislation, the same approach would apply. It is difficult to perceive of a circumstance where a court would not accede to a defendant's application to strike out proceedings that did not comply with the procedural requirements of the Act, unless there was some conduct of the defendant that was relevant to the exercise of the discretion. However, there may be other circumstances and my comments are not to be taken as in any way confining the Court's discretion in dealing with such an application. In this case, the claimant, as the defendant to the proceedings in the District Court, resisted the opponent's claim at an early point in the proceedings, on the basis that he had not complied with the relevant statutory requirements.
89 The claimant also made it apparent, at least in its argument on the appeal, that it seeks compliance with all of the pre-trial procedures prescribed by the WIM Act. In those circumstances, subject to the consideration of the opponent's argument that his claim was not governed by the legislation at all, I am of the opinion that the trial judge wrongly exercised her discretion in dismissing the opponent's motion.
90 The opponent conceded that if his claim is one that must comply with Ch 7, then there has been no compliance and, as I understand it, the appeal should be allowed. He contended, however, that he does not have a claim for "work injury damages" as defined in s 7 of the WIM Act, but that his claim is merely for "damages". He said on that basis, he falls entirely outside the requirements of Pt 7. In this regard, he relied upon the statement of Basten JA in Kimberly-Clarke Australia Pty Limited v Thompson [2006] NSWCA 264; (2006) 67 NSWLR 187, at [43], that:
"Absent an opportunity for there to be a claim for lump sum compensation, neither s 281 nor s 315 can have operation. Accordingly, even if the plaintiff's claim is a work injury damages claim to which Chapter 7 applies, contrary to the view expressed at [56] below, s 315 has no operation in relation to it and the specific complaint raised by the employer must fail."
91 I agree with Young CJ in Eq's analysis of Kimberly-Clark Australia Pty Limited v Thompson at [169]-[172], that his Honour's comments were not part of the ratio of the case. I will return, however, to the question whether his Honour's comments have any application to this case. In doing so, it must be recognised that the claim in Kimberley-Clark was a widow's claim, not a claim under the WCA.
92 The opponent's argument is based upon his contention that as at the date of his injury, that is, 24 March 2000, there was no entitlement under the provisions of ss 66 and 67 of the WCA for lump sum compensation for psychiatric injury. His claim is for psychiatric or psychological injury and severe aggravation of his pre-existing asthma. The opponent, for the purposes of securing his entitlement to bring his proceedings on the basis that he was injured in the course of his employment, relied upon the finding of the trial judge that any physical symptoms that he was suffering, such as a marked stutter, dizziness and balance problems and a right hand tremor, were symptoms of a psychiatric condition and could not, at the time of his accident, found a claim for lump sum compensation. Alternatively, as I have already examined above, he maintained his position that he would abandon any claim for lump sum compensation if necessary.
93 The opponent's argument then proceeded with a review of the provisions referred to in Sch 6 Pt 18C, cl 8 of the WCA. As already explained above, pursuant to cl 8, the procedural provisions of the WIM Act apply to cases where an injury was received before the 2001 amendments came into effect, but where a claim was made after the commencement of the amendments.
94 The opponent then dealt with the provisions of the WIM Act commencing at s 280A, which he recognises are those arguably preventing him from making a claim. He referred to ss 280A, 281 and 282-286. I pause to note that s 284 is excepted from the terms of cl 8 and ss 285 and 286 are not presently relevant.
95 The opponent's argument next referred to Pt 1 of Ch 7, which comprises s 250, (the definition provision), and s 251, which provides that Ch 7 applies to and in respect of new claim matters only, unless otherwise provided for in that chapter. He noted that those provisions were inserted by the Workers Compensation Legislation Amendment Act 2001, Act No 61, and were operational as and from 1 January 2002. The definition of "work injury damages" is contained in s 250 of the WIM Act which, the opponent points out, is not picked up in Sch 6 Pt 18C, cl 8 of the WCA. He contended that the heading to Pt 2, Div 2 (comprising ss 259-264), "Making a claim for compensation or damages", does not assist, because the heading does not form part of the Act. That is not correct: see the Interpretation Act 1987, s 35(1). Leaving that aside, the opponent then said there is no definition of "claim" in Ch 7, so that it is necessary to have regard to its meaning in s 4. He stated that one is then driven back to s 280A.
96 He then made this submission:
"If the plaintiff does not have a 'claim' for lump sum compensation in respect of the injury (as found by the trial judge in this case) the plaintiff does not have a 'claim' for work injury damages. Consequently, all of the references to a 'claim' in Division 2 do not apply [to the opponent] because he is not entitled to make a claim for work injury damages."
97 The opponent contended, therefore, that the pre-trial requirements of the WIM Act do not apply to the claimant and Sch 6 Pt 18A, cl 8 has no effect in regard to his rights.
98 The claimant resisted this approach to the opponent's claim. It contended that the opponent's physical condition was, or at least arguably was, compensable under ss 66 or 67 of the WCA. However, whatever position the opponent takes in relation to such claims, the claimant contended that the operation of Sch 6 Pt 18C of the WCA meant that his claim is subject to the regime provided for by Ch 7 of the WIM Act.
99 In my opinion, the opponent's argument must be rejected. The plain reading of Sch 6 Pt 18C(8) of the WCA is that the specified procedural provisions of Ch 7 of the WIM Act relate to the making of a claim even if the claim is an existing claim. "Claim" and "existing claim" are defined in s 4 and, in turn, take one to the definition of "work injury damages" in s 250. It was unnecessary, as a matter of drafting, for Sch 6 Pt 18C(8) to refer to the definition provisions of Ch 7 Pt 1 for a claim for work injury damages as defined within that Division, to be incorporated within its reach.
100 Further, Attileh is authority that claims for damages for an injury to which the WCA applies are subject to the procedures of the WIM Act. The opponent's claim is a common law claim for damages, which by the combined operation of the WIM Act and the WCA is a claim for work injury damages and is governed by the procedures of the WIM Act.
101 In my opinion, leave to appeal should be granted and the appeal allowed with costs.
102 YOUNG CJ in EQ: The Court is dealing in a concurrent hearing with an application for leave to appeal, and if leave is granted, the hearing of an appeal against a decision made by Balla DCJ.
103 Although never actually conceded, the opponent has said nothing against leave to appeal being granted and has fully argued the appeal.
104 Thus, in due course, we will formally order that leave to appeal be granted and fix a time for filing the notice of appeal.
105 The case is an awkward one because there is no doubt that the worker in question suffered an injury on 24 March 2000 when he was driving his employer's motor vehicle. The problem for the Court is that his claim might need to be summarily dismissed because of technicalities in the legislation.
106 In brief, what occurred was that a container of solvent overturned in the boot of the vehicle, it emitted fumes, the fumes were inhaled by the worker and it is said that was why he lost control of the vehicle and crashed it into a tree.
107 The plaintiff worker (whom I must call the opponent to avoid confusion in the text of these reasons) commenced proceedings in the District Court Motor Accidents List in respect of the accident in 2003. He complied with the pre-trial requirements for that sort of claim and he filed his claim within time. However, it was realised in 2005 that in the light of the decisions in this Court and the High Court, limitation on damages unacceptable to the opponent might apply.
108 However, insofar as the opponent claims for work injury damages under the Workers Compensation Act 1987, the claimant alleges that he has not complied with the procedural requirements of the Workplace Injury Management and Workers Compensation Act 1998 (the WIM Act).
109 On 26 October 2006, the claimant filed a notice of motion in the District Court in which the principal claim was that the opponent's claim for work injury damages be dismissed for failure to comply with ss 280A, 313, 315 and 318A of the WIM Act and ss 151B, 151E, 151G and 151H of the Workers Compensation Act.
110 The motion was heard by her Honour Judge Balla on 21 and 22 February 2007 and 18 May 2007. Her Honour gave judgment dismissing the motion on 1 June 2007.
111 To put the argument in context, it is necessary to set out some of the relevant statutory provisions.
112 The WIM Act in s 280A provides:
"A claim for work injury damages in respect of an injury cannot be made unless a claim for lump sum compensation in respect of the injury is made before or at the same time as the claim for work injury damages."
113 The opponent never made a claim for lump sum compensation, a claim that would have had to be made under s 66 of the Workers Compensation Act. He says that he was not entitled to lump sum compensation.
114 The opponent argued that s 280A does not have any operation where there can be no claim for lump sum compensation and relied on the decision of this Court in Kimberly-Clark Australia Pty Ltd v Thompson (2006) 67 NSWLR 187 at 197 [43].
115 The claimant submitted to the learned primary judge that this was a case where there could have been lump sum compensation.
116 The opponent's counsel submitted that his client's complaints could not have been the subject of lump sum compensation as at 2000. However, if that was wrong, he expressly abandoned any such claim.
117 The primary judge seems to have considered that such abandonment would be sufficient to show that there was no valid claim for lump sum compensation.
118 However, she also specifically held that, as at the date of the accident, there was no relevant entitlement of the opponent to lump sum compensation under the Workers Compensation Act.
119 The judge thus ruled that s 280A did not apply in the present case.
120 I should note that part of the argument before the primary judge was the difference in the legislation as at the day of the accident and subsequently. The legislation was significantly amended by the Workers Compensation Legislation Further Amendment Act 2001 between the date of accident and the commencement of the litigation. I can pass over this complication for the present.
121 The primary judge made other orders excusing delay and extending time.
122 The claimant says that the primary judge was in error on every point. It says that, viewed as at the date of the accident and under the legislation then in force, there was a claim for lump sum compensation in respect of the opponent's alleged stutter, brain damage and right hand tremor.
123 Secondly, she wrongly held that the opponent did not have to comply with s 280A of the WIM Act.
124 Thirdly, the primary judge should not have granted the extension of time she did.
125 The matter came on for hearing before us on 16 April 2008. Mr M Joseph SC and Mr S Kettle appeared for the claimant and Mr T McKenzie for the opponent.
126 After the Court had fully heard Mr Joseph, Mr McKenzie requested that he put his submissions to the Court in writing. This request was granted and the remainder of the matter was dealt with in writing, the final submissions being received shortly after 12 May 2008. It should be noted that the opponent's submissions were joint submissions of Mr H Kelly SC and Mr McKenzie.
127 Mr Joseph put that it was necessary to trace the procedural requirements through the WIM Act. The vital sections are in Ch 7 Part 2 Division 2 and Part 3 Division 4 (ss 259-264 and ss 280A-282) which were introduced in their present form in 2001.
128 Section 259 provides that Part 2 Division 2 applies to the making of claims even if the injury that caused the claim occurred before the 2001 Act amendments.
129 Section 260 requires (it uses the word "must") a claim to be made in accordance with the applicable WorkCover Guidelines.
130 Section 261 provides time limits for the making of claims.
131 Section 262 is as follows:
"Court proceedings for the recovery of work injury damages cannot be commenced until a claim for the damages has been made."
132 The Workers Compensation Act in ss 66 and 67 provides that a worker may obtain lump sum compensation for permanent impairment and for pain and suffering respectively. In addition and as a quite separate matter, Ch 7 of the WIM Act provides for work injury damages.
133 Section 250(1) of the WIM Act (in Ch 7) defines "work injury damages" as damages recoverable from a worker's employer in respect of injury or death of the worker caused by the negligence or other tortious conduct of the employer.
134 Section 263 of the WIM Act requires that, as far as practicable all claims under ss 66 and 67 of the Workers Compensation Act be made at the same time. Section 280A, which I have already set out, applies to work injury damages.
135 Section 281 requires the person on whom a claim for lump sum compensation or work injury damages is made to determine the claim swiftly either by accepting liability and making a reasonable offer of settlement or by disputing liability and in either case indicating whether or not there is a dispute about the degree of permanent impairment.
136 Claims for work injury damages may be commenced in any court. However, Ch 7 Part 6 (ss 311-318I) imposes procedural obligations on the parties.
137 If there is a dispute about whether the degree of permanent impairment exceeds 15%, then unless the defendant accepts it is above 15%, the dispute must be resolved by an approved medical specialist.
138 Section 318A of the WIM Act prescribes mandatory mediation before a work injury damages claim goes to court. The mediation is a more active mediation than is usual in ordinary civil cases. The mediator has power to subpoena and call for documents (see s 318D of the WIM Act which incorporates ss 357-359).
139 Sections 151G and 151H of the Workers Compensation Act provide a limitation on the types of damage that may be awarded in a claim for work injury damages and provide that no damages are to be awarded unless the worker has suffered at least a 15% permanent impairment.
140 Mr Joseph puts that the scheme is that there must be an early assessment of the degree of permanent impairment. To ensure that this occurs, the worker's claim for s 66 compensation and for work injury damages must be made concurrently, the worker then assessed by the appropriate medical people before there can be litigation.
141 Thus it is imperative that the worker be assessed no matter when the injury occurred. It is only if he or she is assessed as surmounting the 15% barrier that any claim can succeed.
142 Accordingly, Mr Joseph puts, a worker cannot waive a claim under either section 66 or s 67. It is irrelevant that the worker in fact made no claim under s 66 if he or she had such a claim.
143 In the present case, Mr Joseph put that there was a claim under s 66 and thus the opponent had not complied with the mandatory procedural requirements of the legislation and his claim for work injury damages ought to be dismissed.
144 Although the primary judge did find that there was no claim in the opponent under s 66, she did not need to rule on the matter because she considered that the abandonment of any such claim put an end to that issue in any event. If Mr Joseph's submissions are accepted, it was not competent for the worker to abandon any claim he may have had.
145 However, Mr Joseph says the fact that the worker asserted claims for which compensation under s 66 could be payable is sufficient. The statute focuses on the claims that are made.
146 In summary then, Mr Joseph puts that the opponent has not complied with s 280A of the WIM Act, that s 313 of the WIM Act prevents the service of a pre-filing statement and the commencement of court proceedings, s 315 of the WIM Act has not been observed and there has been no mediation under s 318A.
147 There was some debate before us as to whether, if we upheld Mr Joseph's submissions the opponent's claim would be forever barred or whether he could even now comply with the procedures of the WIM Act. Although Mr Joseph hinted that his client might waive time limits, s 261 of the WIM Act would put some bar in the way of the opponent.
148 It was also noted that the opponent could if he so desired continue his claim under the Motor Accidents Compensation Act 1999.
149 In his written submissions, Mr McKenzie put that the primary judge had actually determined as a matter of fact that the opponent had no relevant entitlement to lump sum compensation. I must say that I do not so read her Honour's judgment.
150 Mr McKenzie acknowledged that the opponent had not complied with many of the procedural requirements of the WIM Act. He said this was irrelevant as the question for the Court was whether he need to comply with them.
151 Mr McKenzie puts that Ch 7 of the WIM Act simply does not apply to the plaintiff's claim in the present case because of the definition of "claim" in section 4 of the WIM Act together with the operation of s 280A of the WIM Act.
152 Section 4 of the WIM Act defines "claim" as meaning:
"a claim for compensation or work injury damages that a person has made or is entitled to make"
153 The opponent says that his claim is not a work injuries claim as now defined. It is a claim within s 4 for damages in respect of his injury.
154 The opponent says that he had a claim before 2001 which he is putting forward. He was not bound by the complicated procedural provisions which came into force in 2001.
155 In support of these submissions, counsel discussed the operation of Schedule 6 Part 18C of the Workers Compensation Act, containing the provisions consequent on enactment of the 2001 amendments.
156 In reply, Mr Joseph put that the scheme of the legislation leaves no room for the suggestion that there is a category of common law claims against an employer which are not work injury claims.
157 He notes the wide definition of "work injury claim" in s 250(1) of the WIM Act.
158 I consider that it is impossible to construe the WIM Act in the way the opponent suggests. The provision which have been set out seem to me to indicate that there are a closed number of categories of claims that can be considered and that these must be considered under the procedural provisions of the legislation whether or not they occurred after the passing of the 2001 amendments.
159 The construction of the legislation advanced by Mr Joseph, on the other hand, seems to marry together the various provisions of the legislation in a logical way. However, that impression must be tested against the suppositions inherent in it and previous decisions of the Court.
160 Mr Joseph's submissions rely on three debatable propositions, viz: