Austin v St John of God Health Care Inc - [2012] WADC 167

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: AUSTIN -v- ST JOHN OF GOD HEALTH CARE INC [2012] WADC 167

CORAM: DEPUTY REGISTRAR HEWITT

HEARD: 20 NOVEMBER 2012

DELIVERED : 26 NOVEMBER 2012

FILE NO/S: CIV 1953 of 2011

BETWEEN: KELLI ROBIN AUSTIN
Plaintiff
AND
ST JOHN OF GOD HEALTH CARE INC
Defendant

Catchwords:

Practice and procedure - Application for summary judgment - Whether s 93K(4) of the Workers' Compensation and Injury Management Act 1981 precluded an award of damages

Legislation:

Limitation Act 1935
Workers' Compensation and Injury Management Act 1981

Result:

Application dismissed

Representation:

Counsel:

Plaintiff: G R Hancy
Defendant: J Myers

Solicitors:

Plaintiff: Stephen Browne
Defendant: Kott Gunning

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

Abreu v Thomas Peacock and Sons Pty Ltd (No.3) [2012] WADC 31
Dossett v TKJ Nominees Pty Ltd (2003) 202 ALR 428; (2003) 218 CLR 1
Fancourt v Mercantile Credits Limited (1983) 154 CLR 87
Mortons Trustees v McDougall (1944) SC 410
Ward v Walton (1989) 66 NTR 20

DEPUTY REGISTRAR HEWITT: This action was commenced by writ filed 16 June 2011 in which the plaintiff sought damages for personal injury which she suffered whilst an employee at the defendant's hospital. That incident occurred on 18 June 2008 and clearly the issue of the writ was designed to prevent difficulties which might occur were the plaintiff to delay in issuing the writ beyond the three year limitation period prescribed by the Limitation Act1935.
Since the plaintiff was an employee of the defendant, the provisions of the Workers' Compensation and Injury Management Act 1981 are relevant and in particular those which are contained in pt IV.
Of particular relevance is s 93K of the Act. At the time the writ was filed, s 93K(4) of the Act provided as follows:
(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 within –
(i)the period of 30 days after the Director gives the worker written notice that the Director has registered the election; or
(ii)any further time provided for in the regulations to allow for things to be done before court proceedings are commenced;
and
(d)the Court is satisfied that the worker's degree of permanent whole person impairment is at least 15%.
The Act has since been amended and s 93K(4)(c) now reads:
(c)court proceedings seeking the damages are commenced after the Director gives the worker written notice that the Director has registered the election; ...
The next provision of the Act which requires consideration is s 93L which provides that a worker can only make an election under s 93K to retain the right to seek damages if his degree of permanent whole person impairment has been assessed to be at least 15%, or it has been agreed between the employer and the worker that the degree of permanent whole of person impairment is at least 15% and the director has at the request of the worker, recorded that assessment and agreement in accordance with the regulations. It is further provided that the worker's election cannot be made after the termination day.
The next section requiring consideration is s 93M which determines the meaning as the term 'termination day'. The section provides that if a claim for compensation by way of weekly payments has been made, the termination date for an election to retain the right to seek damages in respect of the injury is the last day of the period of one year after the day on which the claim for compensation was made. That provision is however subject to further provisions of which s 93M(3) is relevant which is in the following terms:
(3)If, after the expiry of the period of three months after the day on which the claim is made –
(a)a dispute resolution authority, acting under s 58(1) or (2) determines the question of liability to make the weekly payments claimed; or
(b)the worker is first notified that liability is accepted in respect of the weekly payments claimed,
the termination day is the last day of the period of nine months after the day of the act described in (a) or (b) that was most recently done unless a later day is fixed under subsection (4).
Section 93M(4) has no application to the present circumstances.
The materials filed in this case reveal that the plaintiff made a claim for weekly payments on 2 July 2008. It is common ground that application has not been resolved.
Although the applicant defendant contends for an alternative interpretation, my view is that when a claim for weekly payments is subject to a dispute, the worker has nine months after the resolution of that dispute, whether by agreement or determination, within which to make an election.
If my analysis is correct, it follows that the plaintiff in the present action has a considerable period available within which to register an election.
On the latter point, evidence has been presented to show that information is available to the plaintiff's solicitors to support an assessment of the degree of permanent whole of person impairment at 18%.
The case advanced by the defendant is that irrespective of whether the pre or post‑action version of the Workers' Compensation and Injury Management Act applies, the plaintiff has failed to satisfy the necessary precondition to be entitled to an award of damages, that the situation cannot be retrospectively cured, and that her action is thereby doomed by virtue of the fact that the court will be precluded from awarding any damages to her.
There is no doubt that under the current incarnation of s 93K(4)(c), were it to apply, the plaintiff's case would not be tenable. There is however authority to suggest that a cause of action, vested in a plaintiff, cannot be abrogated, save by the clearest words within the legislation expressing parliament's intention to do so: Dossett v TKJ Nominees Pty Ltd (2003) 202 ALR 428; (2003) 218 CLR 1. On that authority I conclude that if the plaintiff's action was sustainable at the time she commenced it, nothing in the amending legislation would have defeated the claim and I therefore intend to restrict my analysis to the Act as it existed when the writ was filed.
The critical provision within s 93K(4) is as follows:
(c)court proceedings seeking the damages are commenced within –
(i)the period of 30 days after the director gives the worker written notice that the director has registered the election.
(ii)…
In a nutshell, the applicant argues that it is necessary that the director gives the worker written notice that the director has registered the election and the court proceedings are commenced within 30 days of that date. If that interpretation is correct then clearly this writ was not compliant.
Authority has been cited by the plaintiff in which courts have interpreted words rather similar to those used in the Workers' Compensation and Injury Management Act using the word 'within'. Courts of high authority have held that the word 'within', when used in legislation under scrutiny in the various cases decided, sets an outer limit for the last date upon which compliance can be achieved, thus in MortonsTrustees v McDougall (1944) SC 410, a provision requiring notice to be given within one month of the expiration of the calendar year in which damage occurred was held to be satisfied by a notice given prior to the expiration of that year. Similarly, in Ward v Walton (1989) 66 NTR 20, the word 'within' was interpreted to depict the outer limit within which an action might be brought and the court upheld the validity of a writ which had been argued to have been issued prematurely, ie by the solicitors before the plaintiff was personally aware of the facts which entitled her to commence proceedings. Other cases including decisions of Supreme Courts throughout Australia have been to the like effect.
The application before me, being an application for summary judgment, judgment should not be granted unless it is clear there is no real question to be tried: Fancourt v Mercantile Credits Limited (1983) 154 CLR 87.
It has recently been held by a judge of this court in Abreu v Thomas Peacock and Sons Pty Ltd (No.3) [2012] WADC 31 that the Workers' Compensation and Criminal Injury Management Act ousts the provisions of the Limitation Act 2005 such that it imposes its own regime for the timing of the commencement of actions. That decision is under appeal. If that appeal is successful then a likely consequence of an interpretation such as that propounded by the defendant is that there will be a number of plaintiffs who cannot, for reasons beyond their control, obtain and record a determination in their favour, prior to the expiry of the three year limitation period which prevails in an action for tort.
That would seem to be an unfair result and an interpretation of the section which would prevent such an outcome and preserve to injured workers their right of common law action would appear to me to be more appropriate, particularly as the legislation in question is regarded as beneficial legislation and to be interpreted accordingly.
It is therefore my view that the defendant's application should not succeed. There is a real question to be tried, namely whether it is possible for the plaintiff to satisfy the requirements of the Workers' Compensation and Injury Management Act subsequent to the commencement of a District Court action and thus open the way to an award of damages in that action. The summary judgment application by the defendant is therefore dismissed. Due to difficulties making it awkward for counsel to attend to take this decision, I have agreed to forward copies of it to both sides and invite the parties to arrange a mutually convenient time to come before the court and move for any orders which flow from the reasons I have delivered.