Beasley v Fortescue Metals Group Ltd
[2020] WADC 118
•27 AUGUST 2020
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: BEASLEY -v- FORTESCUE METALS GROUP LTD [2020] WADC 118
CORAM: GETHING DCJ
HEARD: 19 & 24 AUGUST 2020
DELIVERED : 27 AUGUST 2020
FILE NO/S: APP 2 of 2020
BETWEEN: KAREN ANNETTE BEASLEY
Appellant
AND
FORTESCUE METALS GROUP LTD
Respondent
ON APPEAL FROM:
Jurisdiction : WORKCOVER WA ARBITRATION SERVICE
Coram: ARBITRATOR FLETCHER
File Number : A53856
Catchwords:
Workers' compensation - Appeal from Arbitrator - Whether judgment against a plaintiff in a District Court action precludes further applications in the WorkCover jurisdiction in respect of the same injury
Legislation:
Workers' Compensation and Injury Management Act 1981 (WA), s 91, s 92, s 93P, s 217
Result:
Appeal dismissed
Representation:
Counsel:
| Appellant | : | Mr M J Lourey |
| Respondent | : | Mr C C Rimmer |
Solicitors:
| Appellant | : | Chapmans Lawyers |
| Respondent | : | Sparke Helmore Lawyers |
Case(s) referred to in decision(s):
Armet v CFC Consolidated Pty Ltd [2019] WASCA 165
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Beasley v Pilbara Mining Alliance Pty Ltd [2019] WADC 56
BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250
Costa v The State of Western Australia [2019] WASCA 200
Engine Protection Equipment Pty Ltd v Miller [2018] WASCA 55
Ivanhoe Gold Corporation Ltd v Symonds [1906] HCA 71; (1906) 4 CLR 642
Jenkins v Western Australian Department of Training [1999] WASCA 199
Marks v Coles Supermarkets [2020] WADC 36
Mohammadi v Bethune [2018] WASCA 98
Pacific Industrial Co v Jakovljevic [2008] WASCA 60
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97
Suleski v Pilbara Iron Company (Services) Pty Ltd [2018] WASCA 147
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362
Ta v Lucky Import and Export Co Pty Ltd [2002] WASCA 65
The State of Western Australia v Williams [2018] WADC 68
Waite v Alcoa of Australia Ltd [2020] WASCA 1
GETHING DCJ:
Overview
At all material times, the Appellant, Karen Beasley, was an employee of the Respondent, Fortescue Metals Group Ltd, for the purposes of the Workers' Compensation and Injury Management Act 1981 (WA) (WCIMA). During her employment she sustained two injuries. The first was on 17 August 2012, and involved a neck and arm injury (First Injury). The Respondent accepted liability for the First Injury and the Appellant was paid weekly compensation payments until on or about 16 November 2012 when she was medically cleared to return to work earning her pre-accident wage.
The second injury occurred on 30 March 2013, and was again to the Appellant's neck and arm (Second Injury). The Respondent accepted liability for the Second Injury and the Appellant was paid weekly payments until the end of 2014 or beginning of 2015 when the prescribed amount limiting weekly payments was exhausted.
In March 2015 the Appellant elected to seek damages from the Respondent at common law for losses said to arise from the Second Injury. She commenced proceedings in the District Court. Following a trial, on 18 April 2019 the Appellant's claim was dismissed and judgment was entered for the Respondent (DC Decision).[1]
[1] Reported as Beasley v Pilbara Mining Alliance Pty Ltd [2019] WADC 56.
Meanwhile, the Appellant made a further application in the WorkCover jurisdiction. Specifically, by application filed on 20 August 2018, the Appellant sought an order for further weekly payments arising from the First Injury (Application). Alternatively, she sought an order for an extension of the prescribed amount for weekly payments in relation to the Second Injury.
On 18 December 2019 Arbitrator Fletcher dismissed the Application, publishing reasons (Decision).[2]
[2] Beasley v Fortescue Metals Group, WorkCover WA Arbitration Service, A53856, Arbitrator Fletcher, 18 December 2019.
The Appellant has appealed the Decision to the District Court.
For the reasons which follow, the Appellant has not established that the Decision was wrong in law and the appeal should be dismissed.
The WorkCover Decision
The Arbitrator identified two issues in the Application which were appropriate to determine on the papers by way of preliminary issues.[3]
[3] Pursuant to WCIMA s 198(3).
The first was whether the DC Decision contained an issue estoppel to the effect that the Appellant no longer suffers any compensable incapacity for work resulting from the First Injury. The Respondent asserted that this was the effect of the DC Decision. The Arbitrator held that it did, with the effect that the principle of issue estoppel precluded the re-determination of that issue in the Application.[4]
[4] Decision, [10(a)], [11] ‑ [13] and [19] ‑ [23].
The second issue was whether the Appellant's application for an extension of the prescribed amount for weekly payments with respect to the Second Injury was precluded by her common law election.
The extension was sought pursuant to WCIMA s 217 which, among other things, empowers an arbitrator to order the payment of weekly payments by way of compensation beyond the prescribed limit.
The Respondent argued that the effect of WCIMA s 93P(2) is to preclude the operation of WCIMA s 217. That section is in the following terms:
93P.Election under s. 93K, effect of on compensation
(1)This section applies unless, according to an agreement or assessment that the Director has recorded as described in section 93L(2), the worker's degree of permanent whole of person impairment is at least 25%.
(2)If a worker elects under section 93K to retain the right to seek damages and this section applies -
(a)the amount of any weekly payment of compensation to which the worker is entitled under this Act in respect of the injury or injuries, to the extent that the payment is for any time during the first 6 months after the election registration day, is varied to the amount calculated as described in subsection (4); and
(b)the worker is not entitled to any weekly payment of compensation under this Act in respect of the injury or injuries to the extent that the payment would be for any time that is more than 6 months after the election registration day; and
(c)no other compensation under this Act is payable in respect of the injury or injuries -
(i)in relation to a time that is after the election registration day; or
(ii)under Part III Division 2 or 2A, irrespective of whether an election under that Division is made before or after the election registration day; or
(iii)for expenses incurred after the election registration day.
(3)In subsection (2) -
in respect of the injury or injuries includes wholly or partially in respect of the injury or injuries and also includes wholly or partially in respect of any recurrence, aggravation or acceleration of the injury or injuries.
(4)The amount of a weekly payment is -
(a)to the extent that it is for any time during the first 3 months after the election registration day, 70% of the amount of the weekly payment to which the worker would have been entitled if this section had not applied; and
(b)to the extent that it is for any other time during the first 6 months after the election registration day, 50% of the amount of the weekly payment to which the worker would have been entitled if this section had not applied.
The Arbitrator identified the following relevant dates:[5]
(a)in or about December 2014 or early January 2015, weekly payments for the Second Injury were lawfully discontinued;
(b)on or about 27 March 2015 the Director registered the Appellant's election to seek damages from the Respondent for the Second Injury pursuant WCIMA s 93K; and
(c)the Application was commenced on 20 August 2018.
[5] Decision, [24].
The Arbitrator agreed with the Respondent's interpretation of WCIMA s 93P(2), holding that the subsection rendered incompetent a subsequent application pursuant to WCIMA s 217 for an extension of weekly payments.[6] The relevant parts of the Arbitrator's reasons are as follows:[7]
17. In my view the prohibition in s 92P(2)(c)(i) on payment of compensation after 'the election registration day' includes weekly payments in excess of the prescribed amount under s 217. Accordingly I construe the legislative intent underlying s 92P(2)(c)(i) to be that jurisdiction under the Act to determine a s 217 dispute over entitlement to an extension of the prescribed amount for weekly payments is terminated on 'the election registration day' and transferred to the court presiding over the worker's claim for damages. Thus, a fortiori an application under s 217 filed after 'the election registration day' (as in this case) is incompetent.
18. I consider that this construction is consistent with s 93P(2)(a) and (b) which operates to freeze entitlements under the Act from 'the election registration day', pursuant to which 'any weekly payment of compensation to which the worker is entitled under this Act' is reduced in stages in accordance with s 93P(4) over a period of 6 months, beyond which there is no further entitlement, meaning that a employer may lawfully discontinue weekly payments at that time.
…
25. For reasons indicated above, I construe the effect of s 93P(2)(c)(i) to be that jurisdiction under the Act to determine Ms Beasley's entitlement under s 217 with respect to the second injury on 30 March 2013 ceased as at the election registration day on or about 27 March 2015 and was effectively transferred to the District court to be considered as part of the overall claim by Ms Beasley for damages.
26. Accordingly, I am of the view that Ms Beasley's Arbitration Application filed on 20 August 2018 seeking a s 217 extension of the prescribed amount for weekly payments resulting from the second injury is incompetent and must be dismissed.
[6] Decision, [10(b)], [14] ‑ [18] and [24] ‑ [26].
[7] Decision, [17], [18], [25] and [26].
Accordingly, the Arbitrator dismissed the Application.[8]
[8] Decision, [27].
District Court Appeal
By notice of appeal filed 13 January 2020 the Appellant appealed the Decision (Appeal). The Appeal was filed within the requisite time limit after the Decision.[9]
[9] WCIMA s 247(4).
On 15 January 2020 the Respondent filed a notice of respondent's intention in which it advised that it intended to take part in the Appeal and argue that the Decision should be upheld on the grounds relied on by the Arbitrator. At the hearing on 24 August 2020 I gave the Respondent leave to contend that the Decision should be upheld on different grounds to those relied on by the Arbitrator, being that WCIMA s 91 and s 92 also precluded the Appellant's application pursuant to WCIMA s 217.
The Respondent took issue with the manner in which the Appellant expressed her grounds of appeal. The parties conferred with the outcome that on 18 June 2020 the Appellant filed an amended appeal notice (Amended Appeal Notice) in which the grounds of appeal are expressed in a more fulsome manner.
Both the Appellant and the Respondent filed submissions and (with leave) supplementary submissions in the Appeal.
If, as is the case here, written reasons for an Arbitrator's decision under WCIMA pt XI in respect of a dispute are given to a party to the dispute, a party may, with the leave of the District Court, appeal to the District Court against the decision.[10] The basis for leave relied on by the Appellant is that the Decision involved a question of law for the purposes of WCIMA s 247(2)(b). A decision will not 'involve' an error of law 'unless the error is material to the decision in the sense that it contributes to it so that, but for the error, the decision would have been, or might have been, different'.[11]
[10] WCIMA s 247(1).
[11] Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 353 (Mason CJ); BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 [15] (Pullin JA, with whom Buss & Wheeler JJA agreed) (Brady).
If there is a question of law involved, leave should be granted if, in all the circumstances of the particular case, it is in the interests of justice that there be a grant of leave.[12]
[12] Waite v Alcoa of Australia Ltd [2020] WASCA 1 [78] (judgment of the court) (Waite (CA)); Engine Protection Equipment Pty Ltd v Miller [2018] WASCA 55 [46] (judgment of the court); Brady [20]; Paridis v Settlement Agents Supervisory Board [2007] WASCA 97 [16] (Buss JA, with whom Wheeler & Pullin JJA agreed).
The parties were content to have the issue of whether the Appellant should be granted leave to appeal determined with the substantive hearing. Where this occurs, the appropriate approach is to deal with the question of leave after considering the merits of the proposed grounds of appeal. The court will then be in a position to either grant leave and uphold or dismiss the appeal, or refuse leave to appeal.[13] I will adopt this course.
[13] Brady [14].
Except as provided by WCIMA pt XIII or WCIMA s 267, the appeal is to be conducted in accordance with the rules of court of the District Court.[14] As no leave has been granted otherwise, the Appeal is to be conducted on the basis of the evidence before the Arbitrator.[15]
[14] WCIMA s 247(5).
[15] WCIMA s 247(6).
The Appeal is to be by way of review of the decision appealed against.[16] Unless the 'review' persuades the court that the Arbitrator's decision should be varied, discharged or otherwise disturbed, it should stand.[17]
[16] WCIMA s 247(5).
[17] Pacific Industrial Co v Jakovljevic [2008] WASCA 60 [20] - [26] (Wheeler JA, with whom Buss & Pullin JJA agreed).
Two issues arose for determination on the Amended Appeal Notice:
•Did the Arbitrator err in law in not correctly applying the provisions of WCIMA s 93P and in doing so incorrectly hold that the Appellant's entitlement under WCIMA s 217 with respect to the Second Injury ceased as at the election registration day on or about 27 March 2015?
•Did the Arbitrator err in law or in mixed law and fact in concluding that the DC Decision contained an issue estoppel which precludes the Appellant from seeking an order for weekly compensation payments for incapacity resulting from the First Injury?
In its written submissions, the Appellant advised the court that she would not be pursuing the second issue (set out in ground 2).
At the hearing before me, the parties agreed that if the outcome of the Appeal was that the Appellant retained a right to seek additional weekly payments pursuant to WCIMA s 217, the appropriate order was for the Application to then be remitted to WorkCover for determination on the merits.
Did the Arbitrator err in law in not correctly applying the provisions of WCIMA s 93P?
Ground of Appeal 1 in the Amended Appeal Notice is in the following terms:
1.The Arbitrator erred in law in not correctly applying the provisions of s93P of the Workers Compensation and Injury Management Act 1981 WCIMA and in doing so incorrectly held that the Appellant's 'entitlement under s 217 with respect to the second injury on 30 March 2013 ceased as at the election registration day on or about 27 March 2015' (Reasons for Decision: para 25).
Particulars
i.In or about December 2014 to January 2015, the Appellant's weekly compensation payments in respect of her 30 March 2013 injury were lawfully ceased, pursuant to s 61(7)(a) of the WCIMA;
ii.On or about 27 March 2015, the Director of WorkCover WA registered the Appellant's 'election to seek damages' pursuant to s 93K(4) and s 93L of the WCIMA;
iii.Accordingly, as at 28 March 2015, s 93P of the WCIMA applied, with the Appellant's entitlement to weekly compensation payments calculated in accordance with s 93P(4) of the WCIMA, with weekly payments to cease on or before 28 October 2015;
iv.The Arbitrator misinterpreted and/or misapplied s 93P of the WCIMA, including s 93P(2)(c)(i), and in doing so incorrectly held that the Appellant had no further entitlement under s 217 of the WCIMA;
v.The Arbitrator should have held that the Appellant's application pursuant to s 217 of the WCIMA was competent, yet confined to the period between December 2014 / January 2015 to 28 October 2015.
The principles of statutory construction are well settled and are conveniently summarised in the following passage from the decision of Kiefel CJ, Nettle and Gordon JJ in SZTAL v Minister for Immigration and Border Protection:[18]
The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose … Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense … This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.
[18] SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 [14] (Kiefel CJ, Nettle & Gordon JJ) (references omitted). Cited with approval in: Costa v The State of Western Australia [2019] WASCA 200 [43] (Buss P & Mazza JA); Mohammadi v Bethune [2018] WASCA 98 [31] (judgment of the court).
In Mohammadi v Bethune the Court of Appeal, after referring to this passage, added:[19]
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute ...
The objective discernment of the statutory purpose is integral to contextual construction. The statutory purpose may be discerned from an express statement of purpose in the statute, inference from its text and structure and, where appropriate, reference to extrinsic materials … The purpose must be discerned from what the legislation says, as distinct from any assumptions about the desired or desirable reach or operation of relevant provisions …
Discernment of statutory purpose is particularly significant in cases, commonly encountered, where the constructional choice presented is from 'a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural' … In such a case, the choice 'turns less on linguistic fit than on evaluation of the relevant coherence of the alternatives with identified statutory objects or policies' …
Thus, the material provisions of the Act must be understood, if possible, as parts of a coherent whole ...
[19] Mohammadi [32] - [35] (references omitted).
Further, in 'the interpretation of a provision of a written law, a construction that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to a construction that would not promote that purpose or object'.[20]
[20] Interpretation Act 1984 (WA) (IA) s 18.
Counsel for the Appellant submits that the regime in WCIMA grants the Appellant a right to apply for and (if an application is successful) be paid weekly compensation. The right can only be removed by the express words of the provisions of WCIMA. Section 93P partially removes this right on an election being made by reducing and ultimately terminating the payment of weekly compensation six months after the election date. However, it does not remove a right to apply for and receive weekly compensation up to the point at which election is made (at the full rate). Nor does it remove the right to apply for and receive weekly compensation at the reduced rates in the six month period following the election date. The Application is so limited, and is thus not precluded from being brought by the express words of WCIMA s 93P.
Counsel for the Respondent submits that the only right to compensation retained by operation of WCIMA s 93P is a present entitlement. It precludes an application being made pursuant to WCIMA s 217 after the date of election.
In broad terms, WCIMA s 93P 'applies, in effect, to limit the amount of compensation to which a worker is entitled under the Act if an election is made in circumstances where the worker's degree of permanent whole of person impairment is recorded as less than 25%'.[21] The situation to which it appears to be primarily addressed is where the worker is in receipt of weekly payments at the point in time the election pursuant to WCIMA s 93K is made. In this situation, WCIMA s 93P(2) and s 93P(4) have the effect of stepping down the weekly compensation payable to 70% of the amount otherwise payable in the first three months following the election, then 50% in the remaining three months, and then ceasing. This makes sense; it would be unjust to abruptly terminate the weekly payments being received by an injured worker on the worker making an election pursuant to WCIMA s 93K. If the worker subsequently recovers damages from the employer, the amount of weekly compensation paid is deducted from those damages so as not to allow the worker double recovery.[22]
[21] Armet v CFC Consolidated Pty Ltd [2019] WASCA 165 [55] (judgment of the court).
[22] WCIMA s 92.
So if the Appellant had been in receipt of weekly payments at the time she made her election, pursuant to WCIMA s 93P(2) and s 93P(4) she would have continued to receive those payments, albeit at reduced rate and tapering off after six months.
However, as at the date of election, the Appellant had no present entitlement to be paid weekly compensation in respect of the Second Injury.
Hypothetically, assume that the Appellant had made her application pursuant to WCIMA s 217 just prior to making her election, and that an arbitrator had extended her entitlement to weekly payments for a further 12 months, starting from a month before the election was made. Where an arbitrator makes an order as to total liability pursuant to WCIMA s 217, the 'arbitrator is to deal with the payment of the final liability by ordering weekly payments at such rate as the arbitrator thinks proper in the circumstances, having regard to the matters referred to in subsection (3), but not at a rate that exceeds the rate to which the worker was entitled at the time when the total weekly payments for the injury of the worker reached the prescribed amount'.[23] So the effect of an order pursuant to WCIMA s 217 is a continuation of weekly payments. In this scenario, WCIMA s 93P would have the effect that those payments would continue - being payments to which the Appellant would have been entitled had the section not applied - and would have tapered off and ceased after six months (that is, with five months of the entitlement yet to run). However, that is not what in fact occurred.
[23] WCIMA s 217(5).
Counsel for the Appellant is correct to assert that the express words of WCIMA s 93P do not contain a prohibition on an injured worker, who has made an election, subsequently making an application pursuant to WCIMA s 217 (albeit one constrained by WCIMA s 93P(2) and s 93P(4)).
Any prohibition would have to be implied, having regard to language of the relevant sections, context, statutory purpose and the need to interpret the provisions of the WCIMA as parts of a coherent whole.
The Arbitrator implied a prohibition into WCIMA s 93P(1)(c)(i). However, this clause only prohibits the payment of 'other compensation', that is, compensation beyond that specified in WCIMA s 93P(2)(a). In the Application, the Appellant does not claim compensation beyond that provided for in WCIMA s 93P(2)(a).
The other salient contextual point arising from WCIMA s 93P is that the limitations it contains do not apply where 'the worker's degree of permanent whole of person impairment is at least 25%' by operation of WCIMA s 93P(1). This has the effect that, if a worker with this level of impairment is otherwise entitled to be paid compensation, that entitlement continues after making an election to commence common law proceedings, and is not reduced and ultimately terminated by the remaining subsections of WCIMA s 93P. Again, this makes sense. It would be unjust no leave a worker with this level of impairment without any income pending determination of his or her common law claim. If that claim results in the payment of damages, by WCIMA s 92, it is at that point that the right to compensation ceases (assuming it has not ceased by operation of other provisions of WCIMA). This context supports an interpretation of WCIMA pt 4 that allows payment of workers' compensation to continue pending determination of a common law claim, unless expressly limited.
It is necessary to consider WCIMA s 92 in more detail.
Paragraph 92(a) provides that:
if the court decides the action should succeed, then after damages have been ascertained but before judgment is entered for the worker in the action, the worker shall be given a reasonable opportunity to elect whether to have judgment or to discontinue the action.
This paragraph assumes that the right to claim and be paid workers' compensation is not automatically precluded by the commencement of common law proceedings. It has the effect that if the injured worker forms the view that he or she will receive more money by way of workers' compensation, he or she is able to discontinue the common law action and go back to the workers' compensation regime. Paragraph (d) goes on to provide that:
if the action is discontinued the worker shall pay the costs of the employer or of the defendant or of each of them or such part of those costs as the court thinks fit.
Significantly, and consistent with WCIMA s 92(a), there is no prohibition on the worker commencing or continuing proceedings for, or in relation to, compensation under WCIMA in respect of the same injury.
There is, however, a prohibition to this effect where the action proceeds to judgment 'against the defendant' in the action. Paragraph 92(b) and par (c) have the effect of deducting from the damages awarded any compensation or expenses paid under WCIMA. Significantly, in that situation, WCIMA s 92(e) provides that:
if the action proceeds to judgment … against the … defendant … the worker shall not commence or continue proceedings for, or in relation to, compensation under this Act in respect of the same injury.
There is a similar prohibition to that in WCIMA s 92(e) in WCIMA s 92(f)(ii) where the action is finalised by way of a settlement approved by the Director.
The purpose which emerges from each of these scenarios is aptly described in the in the heading to WCIMA s 92 that 'both damages and workers compensation are not recoverable' by an injured worker.[24]
[24] Noting that the heading does not form part of the legislative provision (IA s 32(2)), nor does it appear in the original bill. See generally: The State of Western Australia v Williams [2018] WADC 68 [13] (Sleight CJDC). Nonetheless, it is an apt summary of what is evident in the text of the section.
Section 92 of WCIMA does not expressly prohibit an injured worker whose common law action is finalised by way of judgment against the injured worker from commencing or continuing proceedings for or in relation to compensation under WCIMA in respect of the same injury.
In my view, nor does it impliedly do so (subject to what I set out below). Where the common law action is finalised by way of judgment against an injured worker, the worker will not receive any damages, and, axiomatically, will not receive both damages and workers' compensation, being the mischief which WCIMA s 92 is designed to address.
That leaves WCIMA s 91, which provides:
91.Court's duties where action for damages unsuccessful but workers' compensation is payable
(1)If an action is brought to recover damages independently of this Act, and it is determined in such action that the injury is one for which the employer is not liable in such action, but that he would have been liable to pay compensation under this Act, the court in which the action is tried shall assess that compensation, or refer the assessment of the compensation for determination by an arbitrator, and shall deduct from that compensation all the costs which have been caused by the plaintiff bringing the action, instead of taking proceedings under this Act, and shall enter judgment accordingly.
(2)To the extent that it is practicable to do so, and subject to the conciliation rules and the arbitration rules, a referral under subsection (1) is to be dealt with as if it were an application for resolution of a dispute under Part XI.
Section 91 recognises the somewhat obvious point that as the workers' compensation regime in WCIMA is no fault, there will be instances in which an employer will not be liable to pay damages to an injured worker in common law proceedings, but would be liable to pay compensation under WCIMA. The section sets out two mechanisms for that to occur: determination by the court and determination by a WorkCover arbitrator. The result is consistent with the purpose evident in WCIMA s 92: the injured worker does not receive both damages and compensation. Significantly, the fact that the worker has commenced a common law claim does not automatically bar the worker from receiving workers' compensation. The only consequence is as to costs, consistent with the position where the common law action which an injured worker has elected to commence is discontinued (WCIMA s 92(d)).
The effect of WCIMA s 91 was considered by Pullin J (with whom Parker and Hasluck JJ agreed) in Ta v Lucky Import and Export Co Pty Ltd:[25]
Section 91 of the Act can benefit the worker or the employer. If an action for common law damages is dismissed, then the section benefits the worker in circumstances where the employer not only disputed its common law liability but also disputed liability to pay compensation under the Act. The court hearing the common law action is then the court with jurisdiction to deal with the compensation payable under the Act if it determines that the common law action of the worker fails. This is a matter of convenience to the worker.
The section also may benefit the employer. Section 183 of the Act provides that a payment of compensation is not capable of being charged or attached, nor shall any claim be set off against such payment. So, if an employer gains a costs order in his favour in the common law proceedings unsuccessfully brought by the worker, the costs ordered to be paid by the worker could not be set off against future compensation payments if it were not for s 91. Absent s 91, the employer would be obliged to continue paying workers' compensation payments and be left to recover costs from the worker, who may have no assets. A judgment under s 91 confers on the employer, an advantage in the form of a right of set‑off.
[25] Ta v Lucky Import and Export Co Pty Ltd [2002] WASCA 65 [69] ‑ [70] (Pullin JA (with whom Parker & Hasluck JJ agreed).
There is an equivalent provision to the former WCIMA s 183 in WCIMA s 303.
The formal order which the Court of Appeal in Ta considered appropriate to give effect to WCIMA s 91 was in the following terms:
1.Appeal allowed in part.
2.In lieu of par 2 of the judgment of the District Court there be judgment for the appellant pursuant to s 91 of the Workers Compensation and Rehabilitation Act 1981:
(a)in the form of a declaration:
(i)as to the amount of compensation paid under the said Act up until the date of judgment;
(ii)that the appellant is entitled to future payments of compensation under the Act during his incapacity in such sum as is provided in the Act;
(b)the respondent pay the appellant's costs thrown away by reason of the amendment of the defence on 25 September 2000 to be taxed, and such costs to be set off against the costs the appellant was ordered to pay to the respondent by the trial Judge on 6 June 2001;
(c)the net costs payable to the respondent by the appellant shall be deducted from the compensation payable to the appellant under the Act.
Counsel for the Appellant submitted that WCIMA s 91 does not apply. It is a relic from the older regimes, of which the decision in Ta is an example. Another is the decision of the High Court in Ivanhoe Gold Corporation Ltd v Symonds, a 1906 decision testament to the antiquity of the substance of WCIMA s 91.[26] The Appellant's argument is that the application of WCIMA s 91 is predicated on the court being required to determine both:
(a)'that the injury is one for which the employer is not liable in such action'; and
(b)'but that he would have been liable to pay compensation under this Act'.
Or as Pullin J summarises above ([51]), where there is a dispute as to both liability at common law and to pay compensation.
[26] Ivanhoe Gold Corporation Ltd v Symonds [1906] HCA 71; (1906) 4 CLR 642.
Counsel for the Respondent submitted that WCIMA s 91 does apply to the present case.
There are four reasons which suggest a contrary interpretation to that advanced by the Appellant. The first is that the determination process in a routine common law action under the 2004 regime will generally be straight forward as the employer will have admitted liability and there will have been an election pursuant to WCIMA s 93K. The determination in [54(b)] becomes more of a procedural check as to whether it is appropriate to invoke one of the two identified processes to assess any further compensation which the worker is entitled to.
The second is that WCIMA s 91 is contained in pt IV div 1, headed 'General'. It was open to Parliament to have included it in pt IV div 2 d subdiv 2 which relates only to the '1993 scheme'. Parliament did not do so, which must be taken as an intention that WCIMA s 91 apply to actions brought under both schemes.
The third is that if WCIMA s 91 does not apply to a case like the present one (in which judgment is entered against the injured worker) an anomaly arises between where the action is discontinued and where it is dismissed. Where the action is discontinued (as set out above [43]), the entitlement of the injured worker to receive workers' compensation is subject to a statutory obligation to pay the employer's costs of the discontinued common law action. On the Appellant's interpretation of WCIMA s 91, where the action is dismissed (because the employer is not liable), the right of the injured worker to receive workers' compensation is not subject a statutory obligation to pay the employer's costs of the dismissed action. The Respondent's interpretation gives rise to the consistent position that whether the common law action is discontinued or dismissed, there is a statutory obligation to pay the employer's costs of the unsuccessful common law action.
The fourth is that, given the width of the claims to which WCIMA pt IV div 2 applies (set out in WCIMA s 93B), it is difficult to see WCIMA s 91 having any application at all if interpreted as the Appellant submits. Yet Parliament left it in the legislation, in particular after the amendments to enact the 2004 scheme (WCIMA pt IV, div 2, subdiv 3). Parliament clearly intended it to have some effect. The interpretation advanced by the Respondent gives it an effect which is part of an 'coherent whole'.
I agree with the Respondent's interpretation. Specifically, I am of the view that WCIMA s 91 applies according to its terms to an action brought to recover damages independently of WCIMA under the 2004 scheme for which an election has been made pursuant to WCIMA s 93K. So it applies to the present case.
In the present case, at the conclusion of the District Court action neither party sought to invoke the court's jurisdiction under WCIMA s 91. In that circumstance, the District Court was not obliged to make any order pursuant to WCIMA s 91.[27] Had one or other party invoked WCIMA s 91, form of order would have mirrored that set out at [53].[28]
[27] Ta [63].
[28] It is a moot point as to whether the Appellant can now go back and seek that order as to which, see generally, Ivanhoe Gold.
The issue then becomes whether an injured worker who could have invoked WCIMA s 91, but did not do so, can nonetheless recommence proceedings in the WorkCover jurisdiction to recover the compensation that could have been recovered pursuant to WCIMA s 91. Significantly, this approach would avoid the costs consequences of an order pursuant to WCIMA s 91.
In my view, between WCIMA s 91 and s 92 Parliament set out a regime which comprehensively covers all the scenarios which can arise where an action is brought by an injured worker to recover damages independently of WCIMA for an injury for which the worker is entitled to receive compensation under WCIMA. The evident purposes are that:
(a)an injured worker cannot recover both damages and compensation; and
(b)if the injured worker cannot recover damages either because the employer is not liable (WCIMA s 91) or the action is discontinued (WCIMA s 92(d)), the injured worker maintains their entitlement to workers compensation, but must pay the employer its costs of the defending the common law action.
In that context, the combined effect of WCIMA s 91 and s 92 is to necessarily and by implication prohibit an injured worker from circumventing the regime by otherwise commencing or continuing proceedings for or in relation to compensation in respect of the same injury. This outcome does not cancel out the entitlement of the injured worker to compensation under the no fault scheme: it simply makes that entitlement subject to payment of the employer's costs of the unsuccessful common law action.
In other words, the only way in which the Appellant in this case could have claimed further compensation was by using the process in WCIMA s 91 at the end of the District Court action.
Coming back to WCIMA s 93P, reading the provisions of WCIMA pt 4 as a coherent whole, there no need or justification to imply into WCIMA s 93P any wider prohibition on an injured worker being paid further compensation where the common law action was either dismissed or discontinued. A prohibition in these terms would prohibit the entitlement to seek further compensation which WCIMA s 91 (expressly) and s 92 (by necessary implication) allow.
It follows that the Arbitrator was correct to dismiss the Application in so far as it sought an order pursuant to WCIMA s 217, but on a different basis than that actually expressed in the Decision.
The Appellant has not established that the Decision is tainted by an error of law.
What final orders are appropriate?
An appeal which asserts that an arbitrator has misunderstood the nature of a statutory inquiry or misconstrued a provision of WCIMA is one asserting an error of law.[29] In the present Appeal, the error asserted is material to the Decision in the sense that, if the Appellant's construction was preferred, the Decision would have been different. The Appeal thus involves an error of law and leave to appeal should be granted.
[29] Suleski v Pilbara Iron Company (Services) Pty Ltd [2018] WASCA 147 [19] (reasons of the court); Jenkins v Western Australian Department of Training [1999] WASCA 199 [31] - [41] (Anderson J, with whom Malcolm CJ & Ipp J agreed); Marks v Coles Supermarkets [2020] WADC 36 [65] (Gething DCJ).
However, the Decision is correct in law, so the Appeal should be dismissed and the Decision stand.
I will hear from the parties as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
JM
Associate28 AUGUST 2020
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