Adams v The Roman Catholic Archbishop of Perth

[2002] WADC 28

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   ADAMS -v- THE ROMAN CATHOLIC ARCHBISHOP OF PERTH [2002] WADC 28

CORAM:   NISBET DCJ

HEARD:   30 JANUARY 2002

DELIVERED          :   19 FEBRUARY 2002

FILE NO/S:   CIV 440 of 2000

BETWEEN:   HEATHER VANORA ADAMS

Appellant (Plaintiff)

AND

THE ROMAN CATHOLIC ARCHBISHOP OF PERTH
Respondent (Defendant)

Catchwords:

Statutory interpretation - Workers' Compensation and Rehabilitation Act 1981 - Sections 93B, 22, 84I - Doctrine of stare decisis - Appeal from Deputy Registrar - Uniformity and comity

Legislation:

Workers' Compensation and Rehabilitation Act 1981

Safety, Rehabilitation and Compensation Act 1988 (Cth)

Result:

Appeal dismissed

Representation:

Counsel:

Appellant (Plaintiff)      :     Mr J R Criddle

Respondent (Defendant) :     Mr N M Beech

Solicitors:

Appellant (Plaintiff)      :     J R Criddle

Respondent (Defendant) :     Pynt McKay

Case(s) referred to in judgment(s):

Babaniaris v Lutony Fashions Pty Ltd (1987) 71 ALR 225

Campbell v RGC Mineral Sands Limited [2001] WASCA 395

Janssen v The Commonwealth [1994] 2 Qd R 596

Mokta v Metro Meats International Limited, unreported and unpublished; DCt of WA; (H H Jackson DCJ); CIV 16/2000; 27 June 2001

Re Monger; ex parte Woodford [1999] WASC 273

Walsh v Commonwealth of Australia (1998) 155 ALR 182

Case(s) also cited:

Dzonlagic v The Mattress Renovators Perth Pty Ltd, unreported; Compensation Magistrate's Court; Library No 1107; 24 November 2000

1. NISBET DCJ:  By an action commenced in this Court by writ of summons dated 21 February 2000 the plaintiff sought damages from the defendant for injuries she says that she sustained between March and December 1994 whilst employed by the defendant at La Salle College.  She claims that those injuries were sustained in consequence of the defendant's negligence in failing to provide her with a safe place of work or a safe system of work.

2. By a statement of claim filed 28 March 2001 the plaintiff pleaded that she was employed by the defendant as a canteen manageress at La Salle College when, between March 1994 and December 1994, she was required to lift and manoeuvre into confined spaces without assistance, heavy crates of milk, heavy and awkward crates of bread and cakes, and crates of sausage rolls and pies. She says that during that period she sustained injuries including a disc extrusion in her lumbar spine. She claimed to have sustained permanent incapacity in consequence of her injuries and claims damages, interest and costs. The defendant filed a defence to the claim denying negligence and alleging contributory negligence. The defence is dated 4 July 2001. Then, by summons to chambers dated 13 September 2001, the defendant applied for an order staying the action until a determination or agreement has been reached in relation to the plaintiff's degree of disability in accordance with s 93E of the Workers' Compensation and Rehabilitation Act 1981 ("the Act").  That application was heard and determined in favour of the defendant by a Deputy Registrar of this Court on 2 October 2001.  The plaintiff now brings an appeal against that decision.  In the hearing of the appeal it was common ground that:

   1.The plaintiff had not given any notice to the defendant of any event or occurrence she said occasioned or gave rise to her injury or disability.

   2.The plaintiff had not made any claim for compensation in relation to the claimed injury identified in the statement of claim.

   3.There had been no agreement or determination of the degree of the plaintiff's disability in accordance with the provisions of s 93D of the Act.

3. The defendant had successfully argued before the Deputy Registrar that absent an agreement or an assessment of the plaintiff's degree of disability, then in accordance with the provisions of s 93E of the Act there could be no award of damages at common law in this action because of the provisions of s 93C of the Act which provides: "If this Division applies a court is not to award damages to a person contrary to this Division."

4. The plaintiff's submission is disarmingly simply stated. She says she is not caught by Division 2 of Part IV of the Act because the only way she can be brought within the Division is by an application of s 93B(1) which provides:

   "This Division applies to the awarding of damages against a worker's employer independently of this Act in respect of a disability suffered by a worker if —

   (a)the disability was caused by the negligence or other tort of the worker's employer; and

   (b)compensation has been paid or is payable in respect of the disability under this Act, or would have been paid or be payable but for section 22."

5. The plaintiff said that compensation has not been paid to her nor has she made any claim for payment of compensation and nor will it be possible for her to make any claim for compensation having regard to the provisions of s 84I of the Act. Hence, she argues, as compensation has not been paid and could not be payable within the meaning of the phrase "is payable" in s 93B(1) then the Division does not apply to her.

6. This argument was comprehensively reviewed in this Court by his Honour Judge H H Jackson in Mokta v Metro Meats International Limited, unreported and unpublished; DCt of WA; (H H Jackson DCJ); CIV 16/2000; 27 June 2001.  His Honour rejected this argument for a number of reasons.  Firstly, he applied the decision in Janssen v The Commonwealth [1994] 2 Qd R 596 to find that the words "is payable" in s 93B(1)(b) of the Act extends to circumstances where there is no application for workers' compensation. His Honour also found that this Court was not permitted to award damages to the plaintiff at common law unless there was registered an election pursuant to s 93E of the Act or it was agreed or determined that the worker had a degree of disability of not less than 30 per cent, neither of which had occurred in that case. In this regard he applied the decision of McKechnie J in Re Monger; ex parte Woodford [1999] WASC 273. His Honour further found that to allow a plaintiff to commence a common law action without first determining the degree of disability would be an abuse of the process of the court in that the action may be one in which the plaintiff could never be awarded damages and the court has an inherent power to stay proceedings to prevent its processes from being abused and a general inherent jurisdiction to stay proceedings where it was just and reasonable to do so.

7. Whilst it is true that s 93B of the Act could be more tightly drafted (with the advantage of the experience that litigation brings) it is in my opinion tolerably clear that the intention of Parliament by the enactment of Division 2 of Part IV of the Act was to constrain all claims for common law damages brought by an employee against an employer in consequence of the alleged negligence of the employer, or breach of an express or implied term of the contract of employment. This interpretation is supported by Justice McKechnie's view of the legislation in Re Monger ex parte Woodford (supra) and, additionally, by the Full Court in Campbell v RGC Mineral Sands Limited [2001] WASCA 395.

8. For the sake of completeness I should make a comment or two upon the plaintiff's submission to me that Mokta v Metro Meats International Limited was wrongly decided and should not be followed.  It was submitted that as a Judge of an intermediate court I was not bound by decisions of other members of the court.  It is true that the doctrine of stare decisis does not apply to make the decision in Mokta binding on me:  see the discussion in Babaniaris v Lutony Fashions Pty Ltd (1987) 71 ALR 225 at 231 – 232, 240. Whilst the decision in Mokta is not of long standing, (and neither is the statutory provision construction of which in Mokta is here challenged) I would not depart from it unless I was convinced that it was plainly wrong.  Particularly in the workers' compensation jurisdiction it is important that there be a uniformity of approach:  Walsh v Commonwealth of Australia (1998) 155 ALR 182. In this case, however, I am not at all convinced that the decision of Judge H H Jackson in Mokta is wrong or even attended by sufficient doubt that I should revisit it. In my opinion Parliament's intention, whilst not felicitously expressed insofar as at least s 93B of the Act is concerned, is nevertheless manifest in the whole scheme of Division 2: there are to be no awards of common law damages independently of the Act in respect of any disabilities suffered by any worker caused by the negligence or other tort of the worker's employer unless there has first been a determination or agreement of the extent of the worker's disability which is then brought within s 93E(3) of the Act.

9. In these circumstances the appeal must be dismissed.