Alcoa of Australia Ltd v Johansson
[2019] WADC 3
•11 JANUARY 2019
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: ALCOA OF AUSTRALIA LTD -v- JOHANSSON [2019] WADC 3
CORAM: BOWDEN DCJ
HEARD: 19 DECEMBER 2018
DELIVERED : 11 JANUARY 2019
FILE NO/S: CIV 4552 of 2016
BETWEEN: ALCOA OF AUSTRALIA LTD
Appellant
AND
RICHARD GRAHAM JOHANSSON
Respondent
Catchwords:
Application for summary judgment by appellant (defendant) - Workers' Compensation and Injury Management Act 1981 (WA) - Limitation Act 2005 (WA) - Appeal from registrar's dismissal of an application for summary judgment by appellant
Legislation:
Limitation Act 2005 (WA)
Workers' Compensation and Injury Management Act 1981 (WA)
Result:
Application to apply for summary judgment dismissed
Representation:
Counsel:
| Appellant | : | Mr D Clyne |
| Respondent | : | Mr T Lampropoulos SC |
Solicitors:
| Appellant | : | Harman Legal |
| Respondent | : | Turner Freeman Lawyers |
Case(s) referred to in decision(s):
Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364
CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384
Project Blue Sky Inc v Aust Broadcasting Authorities [1998] 194 CLR 355
BOWDEN DCJ:
Mr Johansson's claims damages for personal injury, loss and damage suffered as a result of contracting diffuse fibrosis, asbestosis and pleural plaques attributable to the inhalation of asbestos dust and fibres at the Alcoa Refinery whilst employed by Karina Constructions during parts of 1972 and 1973 and by Alcoa from May 1973 to October 1998.
Alcoa deny Mr Johansson's claim in its entirety and after the matter was entered for trial filed a re-amended defence raising for the first time the following:
9.Alternatively, pursuant to s 56 of the Limitation Act 2005, as the plaintiff has a permanent whole of person impairment of 18%, any cause of action resulting from the injuries alleged in par 9 of the statement of claim has not accrued and pursuant to s 93L and s 93R of the Workers' Compensation and Injury Management Act 1981 cannot accrue in future.
Particulars
(a)On 2 February 2016, a medical panel constituted under s 36 of the WCIM Act made a determination pursuant to s 38 WCIM Act that the plaintiff's whole of person impairment resulting from the injuries alleged in par 9 of the statement of claim was 18% and the disease was 'diffuse pleural fibrosis'.
(b)On 2 February 2016, the medical panel issued a Certificate of the Degree of Permanent Impairment Assessed for the Purpose of Part IV Division 2 Sub‑division 3 for the purpose of s 93R.
(c)On 8 November 2016, the plaintiff filed a Form 34 - Election to Retain Right to Seek Damages with the Directorate, Conciliation, Work Cover WA.
(d)On 14 November 2016, the Director, Conciliation, WorkCover WA recorded the Assessment in accordance with the regulation (section 93L(2)) and a certificate of the Assessment was given to the worker in accordance with section 146H(1)(b) of the WCIM Act.
Simultaneously with filing the re-amended defence Alcoa applied for leave to apply for summary judgment on the ground that Mr Johansson's cause of action had not accrued by virtue of s 6 and s 56 of the Limitation Act 2005 (WA) and sought an order that Mr Johansson's action be dismissed and judgment be entered in Alcoa's favour.
Leave was required as the application for summary judgment was lodged outside the time expressed in O 16 Rules of the Supreme Court 1971 (WA).
The application for leave to apply for summary judgment was dismissed by Deputy Registrar Harman on 9 August 2018.
Pursuant to the District Court Rules 2005 (WA) r 15 a dissatisfied party may appeal to a judge within 10 days.
The appeal is by way of a new hearing of the matter. It is not necessary to establish error on behalf of the registrar, the matter is heard afresh.
The relevant statutory provisions
Limitations Act 2005 (WA)
6.Personal injury actions — accrual, limitation periods
(1)Section 55 or 56, as is relevant to the case, applies to ascertain when a cause of action relating to a personal injury to a person accrues.
(2)If, under the relevant section, the cause of action accrues before commencement day, the applicable limitation period in that case is that which would have applied before commencement day, whether or not that period has expired.
55.Personal injury — general
(1)A cause of action for damages relating to a personal injury to a person accrues when the only or earlier of such of the following events as are applicable occurs —
(a)the person becomes aware that he or she has sustained a not insignificant personal injury;
(b)the first symptom, clinical sign or other manifestation of personal injury consistent with the person having sustained a not insignificant personal injury.
(2)This section does not apply to a personal injury that is attributable to the inhalation of asbestos.
56.Personal injury — asbestos related diseases
(1)A cause of action for damages relating to a personal injury —
(a)that is attributable to the inhalation of asbestos; and
(b)to a person who did not have knowledge of the relevant facts before 1 January 1984,
accrues when the person has knowledge of the relevant facts.
(2)For the purposes of this section a person has knowledge of the relevant facts in relation to a cause of action when the person has knowledge —
(a)that the injury in question was significant;
(b)that the injury was attributable in whole or in part to the act or omission which is alleged to constitute the cause of action;
(c)of the identity of the defendant; and
(d)if it is alleged that the act or omission was that of a person other than the defendant, of the identity of that person and the additional facts supporting the bringing of an action against the defendant,
and knowledge that any acts or omissions did or did not, as a matter of law, give rise to a cause of action is irrelevant.
(3)For the purposes of this section an injury is significant if the person whose knowledge is in question would reasonably have considered it sufficiently serious to justify the person's commencing an action for damages against a defendant who did not dispute liability and was able to satisfy a judgment.
(4)For the purposes of this section, an injury that —
(a)before 14 November 2005, is a disability as defined in the Workers' Compensation and Injury Management Act 1981; or
(b)on or after 14 November 2005, is an injury as defined in that Act,
is not to be treated as being significant unless either the parties to the proposed action have agreed, or a medical panel constituted as described in section 36(1) of that Act —
(c)has determined that the degree of the disability assessed in accordance with section 93D(2) of that Act, is 30% or more; or
(d)has assessed that the worker's degree of whole of person impairment evaluated as described in sections 146A and 146C of that Act (on or after 14 November 2005), is 25% or more,
as is relevant in the worker's case.
(5)For the purposes of this section a person's knowledge includes knowledge which the person might reasonably have been expected to acquire —
(a)from facts observable or ascertainable by the person; or
(b)from facts ascertainable by the person with the help of medical or other appropriate expert advice which it is reasonable for the person to seek,
but a person is not to be fixed under this subsection with knowledge of a fact ascertainable only with the help of expert advice so long as the person has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice.
Workers' Compensation and Injury Management Act 1981 (WA)
33.Pneumoconiosis, mesothelioma, lung cancer or diffuse pleural fibrosis
Where a worker is rendered less able to earn full wages by reason of suffering from, or his death is caused by —
(a)pneumoconiosis; or
(b)on and after 8 May 1970, mesothelioma; or
(c)on and after the date on which this section comes into operation, lung cancer; or
(d)on or after 19 September 2009, diffuse pleural fibrosis,
and the disease is, or was, due to the nature of any employment in which the worker was employed at any time previous to the date of being so rendered and it is shown to the satisfaction of an arbitrator that, since he was last employed in the State in any employment of that nature, the worker —
(a)has not been absent from the State for a period of, or periods aggregating, more than 6 months; or
(b)having been absent from the State for a period of, or periods aggregating, more than 6 months, has not during that period or those periods been employed in any employment of that nature,
an injury, being pneumoconiosis, mesothelioma, lung cancer or diffuse pleural fibrosis, as the case may be, of the worker occurs and this Act applies to that injury subject, however, to this Division.
36.Claim under s. 33 or 34, referring worker to medical panel
(1)Whenever a claim is made by, or in relation to, a worker for compensation under section 33 or 34, the employer shall within 14 days of the making of the claim send particulars of the claim to WorkCover WA, and the chief executive officer shall refer the question of the worker's condition and fitness for employment to a medical panel comprising 2 or 3 physicians —
(a)all of whom are to be nominated by the chief executive officer from amongst physicians who specialise in diseases of the chest or in occupational diseases; and
(b)at least one of whom specialises in diseases of the chest.
(2)An employer who fails to comply with subsection (1) commits an offence.
(3) The Chairman of a medical panel shall be appointed by the Minister on the nomination of the chief executive officer.
38.Questions to be determined by medical panel
(1)On a reference under section 36, the medical panel, following such examination and tests as it may require, having given the opportunity for oral submissions to be made, and having considered such oral submissions as have been made pursuant to section 37, and perused such certificates of other medical practitioners as either party may in person or by his solicitor or agent tender to that medical panel, shall thereupon consider and determine the following questions —
(a)is, or was, the worker suffering from pneumoconiosis, mesothelioma, lung cancer or diffuse pleural fibrosis?
(b)if so, is, or was, the worker thereby less able to earn full wages?
(c)to what extent if any does, or did —
(i)pneumoconiosis; or
(ii)mesothelioma; or
(iii)lung cancer; or
(iv)diffuse pleural fibrosis,
adversely affect the worker's ability to undertake physical effort?
(d)what other, if any, disease or physical condition is, or was, contributing to the worker's being less able to earn full wages, or death and to what extent?
(e)is, or was, the worker fit for work? If so, at what level — light, moderate, or heavy?
(2)The determination of the medical panel shall, as far as is practicable in each case, be in the form and contain answers to the questions prescribed.
(3)Where the medical panel comprises 2 members who fail to agree on its determination, the chief executive officer shall add a third member to the panel in accordance with section 36.
(4)The determination of the medical panel or a majority of its members is final and conclusive and binding on the worker, on his employer, and on any tribunal in which such determination is relevant.
93K.Constraints on awards
(1)If the liability for an incapacity resulting from the injury has been redeemed under section 67, damages are not to be awarded in respect of the injury.
(2)If a further additional sum has been allowed to the worker under clause 18A(1b) in relation to an injury that is compensable under this Act, damages are not to be awarded in respect of the injury.
(3)If the worker is participating, or has at any time participated, in a specialised retraining program established in respect of an injury that is compensable under this Act, damages are not to be awarded in respect of the injury.
(4)Damages in respect of an injury can only be awarded if —
(a)the worker elects, in the manner prescribed in the regulations, to retain the right to seek the damages; and
(b)the Director registers the election in accordance with the regulations; and
(c)court proceedings seeking the damages are commenced after the Director gives the worker written notice that the Director has registered the election; and
(d)the court is satisfied that the worker's degree of permanent whole of person impairment is at least 15%.
(5)Unless the court is satisfied that the worker's degree of permanent whole of person impairment is at least 25% —
(a)the amount of damages to be awarded is to be a proportion, determined according to the severity of the injury or injuries, of the maximum amount that may be awarded; and
(b)the maximum amount of damages that may be awarded in respect of the injury or injuries is Amount A, but the maximum amount may be awarded only in a most extreme case in which the worker's degree of permanent whole of person impairment is less than 25%.
(6)Subsection (5) has effect in respect of the amount of a judgment before the operation of section 92(b).
(7)No entitlement to damages is created by subsection (5) and that subsection is subject to any other law that prevents or limits the awarding of damages.
(8)If —
(a)subsection (4) does not allow damages to be awarded in respect of the injury; or
(b)damages in respect of the injury have been awarded in accordance with subsection (5),
the employer is not liable to make any contribution under the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (the Contribution Act) in respect of damages awarded against another person in relation to the injury.
(9)If subsection (5) limits the damages that could have been awarded in respect of the injury —
(a)the contributions that the employer may be liable to make under the Contribution Act in respect of damages awarded against other persons in relation to the injury are not to exceed the damages that could have been awarded in accordance with subsection (5); and
(b)if the employer has made or been directed to make a contribution under the Contribution Act in respect of damages awarded against another person in relation to the injury, the amount of damages that may be awarded in accordance with subsection (5) is reduced by the amount of that contribution.
(10)This section applies regardless of whether the damages are awarded against one or several employers.
(11)An issue as to the amount of damages that may be awarded, is to be determined by reference to Amount A as in effect on the date on which the determination is made.
(12)In this section —
Amount A means, in relation to a financial year, the amount that section 93F(8) defines to be Amount A in relation to that financial year.
(13)The court is not bound by an agreement or assessment recorded by the Director under section 93L(2), but may admit it as evidence relevant to the worker's degree of permanent whole of person impairment.
93L.Election under s. 93K to retain right to seek damages
(1)In this section —
termination day has the meaning given in section 93M.
(2)A worker can only elect under section 93K(4) to retain the right to seek damages if —
(a)the worker and the employer agree —
(i)that the worker's degree of permanent whole of person impairment is at least 15%; and
(ii)as to whether or not the worker's degree of permanent whole of person impairment is at least 25%;
or
(b)the worker's degree of permanent whole of person impairment has been assessed to be a percentage that is not less than 15%,
and the Director has, at the written request of the worker, recorded that agreement or assessment in accordance with the regulations.
(3)The Director cannot, under subsection (2), record an assessment that involves a special evaluation as defined in section 146C(4) unless the Director has been given a copy of the certificate referred to in section 93N(1) on the basis of which the special evaluation was requested.
(4)If a claim for compensation by way of weekly payments has been made wholly or partially with respect to the injury or injuries concerned, an election cannot be made after the termination day.
(5)An agreement or assessment that the Director has, at the written request of the worker, recorded in accordance with the regulations cannot be withdrawn and, after it has been recorded, another agreement or assessment as to the worker's degree of permanent whole of person impairment cannot be recorded.
(6)An election that the Director has registered in accordance with the regulations cannot be withdrawn and a subsequent election cannot be made in respect of the same injury or injuries.
(7)Subsection (5) does not prevent an agreement or assessment as to the worker's degree of permanent whole of person impairment from being made, whether before or after the commencement of court proceedings, after the Director has, at the written request of the worker, recorded an agreement or assessment in accordance with the regulations, or from being used in court proceedings.
(8)The Director may at any time rectify an error that was made in recording an agreement or assessment or registering an election.
93R.Some lung diseases, special provisions about
(1)If damages are sought or to be sought in respect of a disease referred to in section 33 or 34, any assessment to evaluate the worker's degree of permanent whole of person impairment resulting from the disease as described in sections 146A and 146C is to be made, not by an approved medical specialist as stated in section 146A(2), but by a medical panel constituted as described in section 36.
(2)Subsection (1) does not prevent the evaluation of the worker's degree of permanent whole of person impairment being settled by agreement.
(3)A person seeking an assessment may advise the chief executive officer, in accordance with any relevant regulation, and the chief executive officer is to arrange for a medical panel to be constituted to make the assessment and refer the making of the assessment sought to the panel.
(4)Section 36(3), section 37, and section 38(1) and (3) apply for a reference under this section as they would for a reference under section 36 except that what is to be considered and determined is the assessment referred under this section instead of the questions that arise on a reference under section 36.
146A.Evaluating degree of impairment generally
…
(2)If a worker and the employer do not agree about the evaluation of the worker's degree of impairment, it is to be assessed by an approved medical specialist or, if this Act so provides, an approved medical specialist panel.
…
146C.Evaluating degree of impairment for Part IV Div. 2 Subdiv. 3
(1)This section applies to an evaluation of a worker's degree of permanent whole of person impairment for the purposes of Part IV Division 2 Subdivision 3.
(2)Section 146A(2) does not prevent a finding that the worker's condition has not stabilised to the extent required for a normal evaluation of the worker's degree of permanent whole of person impairment to be made in accordance with the WorkCover Guides.
(3)In subsection (2) —
normal evaluation means an evaluation that is not a special evaluation as defined in subsection (4).
(4)If this Act provides for a special evaluation of the worker's degree of permanent whole of person impairment to be made in accordance with this section, the evaluation (a special evaluation) is to be made, even though the worker's condition has not stabilised to the extent otherwise required for an evaluation to be made in accordance with the WorkCover Guides, in accordance with any provisions of the WorkCover Guides that apply to a special evaluation.
(5)If the evaluation of a worker's degree of permanent whole of person impairment for the purposes of Part IV Division 2 Subdivision 3 is assessed on the basis that the worker's condition has not stabilised to the extent otherwise required for an evaluation to be made in accordance with the WorkCover Guides, the evaluation has to be a special evaluation made in accordance with this section.
(6)In evaluating the degree of permanent whole of person impairment of the worker, any secondary condition is to be disregarded.
(7)Subsection (6) does not prevent a secondary condition from contributing in the assessment of damages by a court.
146H.Approved medical specialist, duties of after making assessment
(1)An approved medical specialist making an assessment for the purposes of Part III Division 2A, Part IV Division 2 Subdivision 3, Part IXA or clause 18A is required to give to each of the worker and the employer, in writing in accordance with the regulations —
(a)a report of the worker's degree of impairment, including details of the assessment and reasons justifying the assessment; and
(b)a certificate specifying the worker's degree of impairment.
(2)An approved medical specialist giving a certificate —
(a)for the purposes of Part III Division 2A or Part IXA that a worker's condition has not stabilised to the extent required for an evaluation to be made in accordance with the WorkCover Guides as described in sections 146A, 146B, and 146D; or
(b)for the purposes of Part IV Division 2 Subdivision 3 that a worker's condition has not stabilised to the extent required for a normal evaluation to be made in accordance with the WorkCover Guides as described in sections 146A and 146C,
is required to give to each of the worker and the employer, in writing in accordance with the regulations —
(c)a report of any relevant details provided by the worker; and
(d)brief reasons justifying the finding certified.
(3)A certificate for the purposes of —
(a)Part III Division 2A; or
(b)Part IV Division 2 Subdivision 3; or
(c)Part IXA; or
(d)clause 18A,
is to specify the provisions for the purposes of which it is made.
[(4)deleted]
(5)If any of the documents described in subsection (1) or (2) is produced to the Director for the purposes of Part III Division 2A, Part IV Division 2 Subdivision 3, Part IXA or clause 18A and a factual error is apparent on the face of the document, the Director may reject the document and require the approved medical specialist to replace it with a correct document given to each of the recipients of the document that contained the error.
Alcoa's submissions
Mr Clyne's primary submission is that the plaintiff's cause of action has not accrued and in the circumstances of this case cannot accrue and therefore there should be judgment for the defendant.
Mr Clyne points to s 6(1) of the Limitation Act 2005 which specifically states that s 56 of the Limitation Act 2005 applies to ascertain when a cause of action relating to a personal injury to a person accrues.
Section 14 of the Limitation Act 2005 provides that an action for damages relating to a personal injury to a person cannot be commenced if three years have elapsed since the cause of action accrued.
Section 56(1) of the Limitation Act 2005 specifically relates to asbestos related diseases and provides that a cause of action for damages relating to a personal injury that is attributable to the inhalation of asbestos accrues, inter alia, when the person has knowledge of the relevant facts.
Section 56(2) of the Limitation Act 2005 provides that a person has knowledge of the relevant facts in relation to a cause of action when the person has knowledge 'that the injury in question was significant'.
Section 56(4) of the Limitation Act 2005 provides that for the purposes of s 56 an injury that is a disability as defined in the Workers' Compensation and Injury Management Act 1981 (WA) (WCIMA) is not to be treated as being significant unless either the parties to the proposed action have agreed or a medical panel constituted as described in s 36(1) WCIMA has assessed that the worker's degree of whole of person impairment evaluation as described in s 146A and s 146C of that Act is 25% or more.
Mr Clyne argues that the effect of these provisions is that the plaintiff's cause of action only arises when he has knowledge of the relevant facts, that is, when he has knowledge that the injury in question was significant, and the injury in question is only significant if the worker's whole of person impairment has been assessed as 25% or more.
In this case it is agreed that the plaintiff's whole of person impairment assessment is 18% and therefore Mr Clyne submits the plaintiff does not have knowledge that his injury was significant and therefore his cause of action has not accrued.
Mr Clyne points to s 33, s 34 and s 36 of the WCIMA which essentially provide that for claims for asbestos related diseases WorkCover's chief executive officer shall refer the worker's condition to a medical panel.
Section 146A and s 146C provide that the panel shall evaluate the worker's degree of impairment. Workers' Compensation and Injury Management Act 1981 (WA) s 93L provides a mechanism whereby the whole of person impairment as agreed or assessed by the medical panel can be recorded by the WorkCover director.
Section 93R(7) provides that the medical panel is not bound by a previous assessment if that assessment is not recorded but s 93R(8) provides if the assessment is recorded by the director, the whole of person impairment is to be taken to be as recorded.
Section 93K(13) provides the agreement or assessment of the worker's degree of permanent whole of person impairment recorded by the director does not bind the court, however s 93R(8)(b) provides that s 93K(13) does not apply to asbestos related disease. Mr Clyne submits and I agree that the effect of that section is that the assessment or agreement in asbestos related disease cases once registered does bind the court.
Section 93L(5) provides that once the agreement or assessment is recorded it cannot be withdrawn and after it is recorded another assessment cannot be obtained and recorded.
Workers' Compensation and Injury Management Act 1981 (WA) s 93L provides that the worker has a right to elect under s 93K to retain his claim for damages in cases where the whole of person impairment is not less than 15% and the same section provides that no damages can be awarded by a court unless the court is satisfied that the worker's degree of permanent whole of person impairment is at least 15%.
Mr Clyne says that in this case the plaintiff's medical panel assessment has been recorded and the effect of s 93R(8) is that assessment of 18% is final and binding.
Section 56 of the Limitation Act 2005 applies to ascertain when the plaintiff's cause of action accrues and under s 56 the cause of action accrues only when the plaintiff had knowledge that the injury in question was significant. Mr Clyne submits that pursuant to s 56(4) the plaintiff can only have knowledge that the injury in question was significant when he has an assessment that his whole of person impairment is 25% or more and as the plaintiff does not have that whole of person impairment of 25% or more and he cannot now be reassessed, his cause of action has not accrued and therefore the plaintiff's claim should be dismissed.
Mr Johansson's submissions
Mr Lampropoulos says that the proper starting point is to consider the common law position which basically was if a worker was injured and suffered damage he was entitled to issue proceedings.
Mr Lampropoulos said that the difficulty with the common law position was that a person could have a latent disease and the statute of limitations could have well and truly expired before he or she is even aware that they suffered the disease.
Mr Lampropoulos points out that WCIMA s 93K(4) and s 93L(2) provides that damages can only be awarded if the worker elects to retain his right to seek damages within (generally) a 12 month timeframe and that election is registered by the director and court proceedings are then commenced and the court is satisfied the worker's permanent whole of person impairment is greater than 15%.
Mr Lampropoulos says this clearly recognises that a worker is still entitled to sue his employer for damages if, inter alia, he has a whole of person impairment of 15% as a result of asbestos related diseases or otherwise.
Mr Lampropoulos says if a worker suffers from an asbestos related disease and has a whole of person impairment of greater than 15% but less than 25% the worker can either proceed to sue based on that assessment and obtain capped damages or wait until such time as he had a whole of person impairment assessment of 25% and recover uncapped damages.
In the later scenario the worker has three years to commence litigation once he has knowledge that his whole of person impairment is 25% or more.
Section 93L(2) and s 93L(4) provides that the worker must make his election to retain the right to seek damages before the termination date, however s 93R(6) specifically provides that there is no termination date for asbestos related diseases.
Mr Lampropoulos says the statutory scheme set up by the WCIMA is that a worker with an asbestos related disease is treated the same as any other worker, that is, if the disease claim results in a whole of person impairment of under 15% then like any other worker he cannot recover damages. If the whole of person impairment is between 15% to 25% then the worker has the right to capped damages and if the whole of person impairment is greater than 25% then the worker has the right to uncapped damages.
Mr Lampropoulos says that if the whole of person impairment is greater than 25% the worker's cause of action accrues pursuant to s 56(1) when he has knowledge of the relevant facts. Pursuant to s 56(2) he has knowledge of the relevant fact when the person has knowledge that the injury was significant and pursuant to s 56(4) the injury is significant if the whole of person impairment is 25% or more. If this occurs the worker has three years to commence his cause of action from the date when the whole of person impairment was made.
Mr Lampropoulos says that if the worker's whole of person impairment is between 15% to 25% then effectively there is no statute of limitations, that is, he can commence proceedings when he wants to or he can just simply wait and see if his condition reaches 25% whole of person impairment.
Mr Lampropoulos says that s 56(4) does not modify a common law cause of action or the WCIMA.
Mr Lampropoulos says that legislation should not be interpreted in a manner that would take away a common law claim for asbestos related diseases for a person having a whole of person impairment of between 15% to 25% unless there is a clear legislative intent to do so. He points out that any person suffering from a non‑asbestos related disease who has a whole of person impairment of between 15% to 25% can maintain their common law claim, but to adopt Mr Clyne's submissions would mean that a person with an asbestos related disease claim for a whole of person impairment of between 15% to 25% would not be able to maintain a claim against their employer. Mr Lampropoulos pointed to the irony of legislation which is generally considered to be remedial or beneficial to sufferers of asbestos related diseases being interpreted in this manner. Such an interpretation would result in a person suffering from asbestos related disease with a whole of person impairment of between 15% and 25% not being able to maintain a claim against an employer, whereas a person suffering a similar whole of person impairment from a non‑asbestos related disease would be able to maintain such a claim.
Mr Lampropoulos says that to maintain a common law claim requires proof of damages, proof of negligence and then the damages are assessed in accordance with common law principles as modified by the WCIMA.
Section 56(4) only role is to identify when time begins to run when a person has a whole of person impairment of greater than 25%.
He says that the WCIMA specifically recognises in s 93K(4) and s 93L(2) the worker's right to elect to retain his right to seek damages.
Mr Lampropoulos says if a worker's whole of person impairment is not less than 15% s 93R(6) recognises that there is no termination date for asbestos related disease claims.
Mr Lampropoulos says s 56(4) read with s 14 is only concerned with limiting access to the courts for asbestos related disease if proceedings are commenced after three years from when it was agreed or a medical panel assessed the worker's degree of whole of person impairment was 25% or more.
Mr Lampropoulos says that as the plaintiff has not obtained a 25% whole of person impairment agreement or assessment time has not commenced to run against him, but that does not prevent him from commencing and maintaining these proceedings based on his existing right to claim damages based on the 18% assessment.
Mr Lampropoulos says that the plaintiff has complied with the procedural requirements of the WCMIA, that is, he has obtained a medical panel assessment of 18% whole of person impairment, the assessment is recorded, he has elected to retain the right to claim common law damages and that election has been recorded and he has commenced common law proceedings. Mr Lampropoulos says the WCMIA preserves the plaintiff's right to pursue a claim for common law damages in the District Court and the plaintiff has a right to capped damages (because his whole of person impairment has been assessed at between 18% to 25%) for his asbestos related disease if successful.
Mr Johansson says that as the plaintiff's whole of person impairment assessment is greater than 15%, there is a proper basis upon which a judge may award damages at common law. He says the action was commenced before the limitation period under the Limitation Act 2005 elapsed and the limitation period would not elapse until three years after the whole of person impairment is agreed or assessed at 25%.
Construction
Statutory provisions should be construed so that they are consistent with the language and purpose of all of the provisions of the statute: Project Blue Sky Inc v Aust Broadcasting Authorities (1998) 194 CLR 355.
The modern approach to statutory interpretation insists that the context be considered in the first instance, not just at a later stage when it is said ambiguity arises. Context should be used in its wider sense to include such things as existing state of the law and mischief which statute was intended to remedy: CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384, 408.
It is well accepted that statutes will not be interpreted to overturn fundamental principles of common law unless clear intent is shown. The approach of the courts has consistently been to require very clear legislative intent before treating a statutory provision as taking away common law rights of a plaintiff when there is an alternate construction available: Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364 [23].
The defendant is not saying that the plaintiff's claim is statute barred because of the statute of limitations, what he is saying is that the Limitation Act 2005 means that his cause of action has not accrued and therefore he cannot commence his claim. I do not accept the defendant's submissions.
Once the plaintiff has complied with the procedural requirements of the WCIMA, that is once he has obtained a medical panel assessment of a whole of person impairment of greater than 15% and the assessment is recorded and he has elected to retain his right to damages and that election has been recorded and he has commenced common law proceedings, he has a right to capped damages if his claim is successful irrespective of whether his claim is asbestos related or non‑asbestos related diseases.
Clearly the WCIMA preserves the plaintiff's right to pursue a claim for common law damages in the District Court as is expressly recognised by s 93L(2) and s 93L(4) WCIMA.
The plaintiff does have a cause of action in respect of which proceedings can be taken and in my view s 56(4) of the Limitation Act 2005 does not override the WCIMA nor extinguish his right to pursue his claim.
If the plaintiff's claim for negligence is successful and as his whole of person impairment is greater than 15% there is a proper basis upon which a court can award him damages at common law.
His action has been commenced before the limitation period specified under the Limitation Act 2005.
In my view to interpret the legislation in the way contended by the defendant would be to take away a fundamental right recognised at both common law and the WCIMA. That right is the right of the worker to pursue a claim for damages when he has a whole of person impairment of greater than 15%. That right is recognised by s 93L(2) and s 93L(4) of the WCIMA. To interpret the legislation in the way contended by the defendant would mean that persons suffering from asbestos related diseases who have a whole of person impairment of greater than 15% but less than 25% would not be able to pursue a claim, whereas a person with a whole of person impairment caused by non‑asbestos related diseases would be entitled to have such a claim. In my view this is inconsistent with the regime specified by the WCIMA.
Once the worker establishes that his whole of person impairment is greater than 15% and elects to retain the right to seek damages and that election is registered by the director and he commences proceedings, he is entitled to pursue his claim and recover capped damages if successful. Section 93K(4) and s 93L(2)WCIMA make that clear.
Section 56(4) of the Limitation Act2005 read with s 14 of the Limitation Act2005 relates only to asbestos related disease claims where proceedings are commenced after three years from when it was agreed or a medical panel assessed the worker's whole of person impairment was 25% or more.
Section 56(4) of the Limitation Act2005 is clearly a provision inserted for the benefit of workers suffering asbestos related conditions and the use of the words 'for the purposes of this section' in s 56(2), s 56(3), s 56(4) and s 56(5) limit the effect of those provisions to the issues addressed by those sections, that is when time commences to run under the Limitation Act 2005.
Section 56(4) of the Limitation Act2005 does not mean an action that would otherwise be able to be commenced cannot be commenced.
To interpret the section as suggested by the defendant would be to ignore the limiting words 'for the purpose of this section' and deny the beneficial effect of the section and to take away the fundamental right recognised at both common law and the WCIMA of the worker to pursue a claim for damages when he has a whole of person impairment of greater than 15%. That is not the clear legislative intent of the section and is contrary to the context and words of the section.
The orders I make are as follows:
1.The appeal be dismissed.
2.The defendant pay the costs of the appeal to be taxed, such costs will be taxed without regard to the limits in item 4 of the District Court Scales and there be a certificate for counsel.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
MO
Associate to Judge Bowden11 JANUARY 2019
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