BHP Billiton Ltd v Gomes
[2007] WASCA 140
•4 JULY 2007
BHP BILLITON LTD -v- GOMES [2007] WASCA 140
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASCA 140 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:57/2006 | 9 MARCH 2007 | |
| Coram: | STEYTLER P WHEELER JA PULLIN JA | 4/07/07 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| A | |||
| PDF Version |
| Parties: | BHP BILLITON LTD JOSE GOMES |
Catchwords: | Worker's compensation Review Officer determining degree of disability Whether Review Officer has to determine whether disability is work related Meaning of disability Words and phrases "Disability" |
Legislation: | Workers Compensation and Rehabilitation Act 1981 (WA), Pt IV Div 2, s 5(a), s 5(d), s 93B(1), s 93C, s 93D, s 93E |
Case References: | Alcoa v Paladini, unreported; CM-128/05; 6 June 2006 Australian Securities and Investments Commission v Edensor Nominees Pty Ltd [2001] HCA 1; (2001) 204 CLR 559 Casserly v Alcoa of Australia Ltd [2006] WASCA 150 Chestone Holdings Pty Ltd v Garbelini, unreported, FCt SCt of WA; Library No 980584; 19 October 1999 Cuellar-Castellanos v CPE Health Care, unreported; CM-44/05 (Packington CM); 1 February 2006 Eclipse Resources v Reeves, unreported; CM-42/04; 13 September 2004 Ex parte Ansett Australia Ltd v Medical Assessment Panel (1998) 19 WAR 395 Girrawheen Tavern v Joseph [2003] WASCA 244 Hammond Worthington v De Silva [2006] WASCA 180 Hart v Griffin Coal Mining Co Pty Ltd [2005] WASCA 130 Magrath v Goldsbrough Mort & Co Ltd (1932) 47 CLR 121 Marshall v Lockyer [2006] WASCA 58 Murray River North Pty Ltd v Midgley [2006] WASCA 104 R v Lord Chancellor; Ex parte Witham [1998] QB 575 Raymond v Honey [1983] 1 AC 1 Re Monger; Ex parte United Construction Pty Ltd [2002] WASCA 253 Re Skirving; Ex parte Forward, unreported; FCt SCt of WA; Library No 980737; 18 December 1998 Stockman v Argyle Diamond Sales Ltd [2002] WASCA 89 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : BHP BILLITON LTD -v- GOMES [2007] WASCA 140 CORAM : STEYTLER P
- WHEELER JA
PULLIN JA
- Appellant
AND
JOSE GOMES
Respondent
ON APPEAL FROM:
Jurisdiction : COMPENSATION MAGISTRATES COURT
Coram : MS P M HOGAN CM
File No : CM 124 of 2005
(Page 2)
Catchwords:
Worker's compensation - Review Officer determining degree of disability - Whether Review Officer has to determine whether disability is work related - Meaning of disability
Words and phrases - "Disability"
Legislation:
Workers Compensation and Rehabilitation Act 1981 (WA), Pt IV Div 2, s 5(a), s 5(d), s 93B(1), s 93C, s 93D, s 93E
Result:
Appeal dismissed
Category: A
Representation:
Counsel:
Appellant : Mr D R Clyne
Respondent : Ms H E Prince
Solicitors:
Appellant : Pynt & Partners
Respondent : Chapmans
(Page 3)
Case(s) referred to in judgment(s):
Alcoa v Paladini, unreported; CM-128/05; 6 June 2006
Australian Securities and Investments Commission v Edensor Nominees Pty Ltd [2001] HCA 1; (2001) 204 CLR 559
Casserly v Alcoa of Australia Ltd [2006] WASCA 150
Chestone Holdings Pty Ltd v Garbelini, unreported, FCt SCt of WA; Library No 980584; 19 October 1999
Cuellar-Castellanos v CPE Health Care, unreported; CM-44/05 (Packington CM); 1 February 2006
Eclipse Resources v Reeves, unreported; CM-42/04; 13 September 2004
Ex parte Ansett Australia Ltd v Medical Assessment Panel (1998) 19 WAR 395
Girrawheen Tavern v Joseph [2003] WASCA 244
Hammond Worthington v De Silva [2006] WASCA 180
Hart v Griffin Coal Mining Co Pty Ltd [2005] WASCA 130
Magrath v Goldsbrough Mort & Co Ltd (1932) 47 CLR 121
Marshall v Lockyer [2006] WASCA 58
Murray River North Pty Ltd v Midgley [2006] WASCA 104
R v Lord Chancellor; Ex parte Witham [1998] QB 575
Raymond v Honey [1983] 1 AC 1
Re Monger; Ex parte United Construction Pty Ltd [2002] WASCA 253
Re Skirving; Ex parte Forward, unreported; FCt SCt of WA; Library No 980737; 18 December 1998
Stockman v Argyle Diamond Sales Ltd [2002] WASCA 89
(Page 4)
1 STEYTLER P: I have had the advantage of reading the judgment of Wheeler and Pullin JJA. I agree that the appeal should be dismissed. I also agree with what Wheeler and Pullin JJA have said concerning ground 2 of the grounds of appeal. However, I wish to express my own reasons concerning ground 1.
2 That ground raises the question whether, and if so to what extent, a Review Officer, when acting under the then provisions of the Workers' Compensation and Rehabilitation Act 1981 (WA) (now the Workers' Compensation and Injury Management Act 1981 (WA)) ("Act"), is obliged to consider questions of causation in the course of assessing the "degree of disability" suffered by a worker for the purposes of s 93E(3) of the Act.
3 In Ex parte Ansett Australia Ltd v Medical Assessment Panel (1998) 19 WAR 395 the court considered the then provisions of s 84R of the Act which provided for the reference, by a conciliation officer, to a Medical Assessment Panel of a question "as to the nature and extent of a disability … ". The court (Pidgeon, Wallwork and Owen JJ) concluded (at 399) that issues of causation were not issues "as to the nature or extent of a disability" and could consequently not be referred to a Medical Assessment Panel.
4 In Girrawheen Tavern v Joseph [2003] WASCA 244 the court (Parker, Wheeler and McLure JJ) considered s 93D(5) of the Act, which reads as follows:
"If the worker and the employer cannot agree on whether the degree of disability is not less than the relevant level, the worker may … refer the question to the Director."
5 The "relevant level" is that set by s 93E(3) of the Act. It is enough, for present purposes, to say that it is either 16 per cent or 30 per cent. Wheeler J (with whom McKechnie J agreed), after referring to prior authority (including Re Skirving; Ex parte Forward, unreported; FCt SCt of WA; Library No 980737; 18 December 1998; Chestone Holdings Pty Ltd v Garbelini, unreported, FCt SCt of WA; Library No 980584; 19 October 1999; and Stockman v Argyle Diamond Sales Ltd [2002] WASCA 89), concluded (at [55]) that "disability" in s 93D(5) is used in its ordinary, rather than in its defined, meaning. Sacrificing some accuracy for the sake of brevity, the defined meaning requires an injury, if it is to qualify as a disability, to be work-related. Because of her conclusion that the word "disability" is used in its ordinary meaning,
(Page 5)
- Wheeler J found (at [55]) that a determination of the "degree of disability" looks simply to the condition of the worker and not to questions of causation (see also Parker J at [5] - [6]).
6 Girrawheen Tavern was applied in Hart v Griffin Coal Mining Co Pty Ltd [2005] WASCA 130 at [14] - [16] by Pullin JA (with whom Wheeler JA agreed) and by McLure JA at [2]. The court was there concerned (as we are, in the present case) with s 93D and s 93E(3) of the Act. Pullin JA said (at [14]):
"Wheeler J … held [in Girrawheen Tavern] that the word 'disability' when used in s 93D and s 93E is used in its non-technical sense (ie not as defined in the Act, but in its ordinary meaning). I agree. In relation to the employer's main submission, her Honour noted that it could be productive of expense and inconvenience if the Review Officer were to be required to untangle potentially complex legal and factual questions of causation and that it was unlikely that Parliament required such a task of the Review Officer [52]. Her Honour concluded that it is the nature of the disability which is material and not the cause or causes of action which have led to it [53] and that for the purpose of s 93D it is the degree of loss of function in the ordinary sense which is to be assessed, notwithstanding that it may have occurred over a number of years as a result of events on a number of occasions [54]. I agree also with that conclusion."
7 Pullin JA went on to say (at [19]), after referring to s 93B of the Act:
"It is clear that the issue about what 'caused' the disability will have to be determined by the court which is asked to make the award of damages. Section 93B(1)(a) does not require the Review Officer to be satisfied that the disability was caused by 'the negligence or other tort' of the employer because the Review Officer is not concerned with the 'awarding of damages'. The Review Officer only has to assess the degree of disability under s 93D. As Wheeler J said in Girrawheen's case at [52] the assessment made by the Review Officer under s 93D of the Act is made as a threshold or gateway assessment. The threshold is passed by reaching an agreement or obtaining a determination about the degree of disability."
(Page 6)
- Pullin JA was there referring to the fact that, under s 93C of the Act, the court was required not to award damages to a person contrary to Div 2 thereof which, in turn, required amongst other things that the degree of disability be not less than one of the percentages specified in s 93E(3).
8 Each of GirrawheenTavern and Hart has since been applied in Casserly v Alcoa of Australia Ltd [2006] WASCA 150 at [26] and [33].
9 Against this background the appellant faced a difficult task in attempting to persuade this Court that the review officer was not only entitled, but obliged, to consider questions of causation. The error contended for by ground 1 is that the Compensation Magistrate "failed to consider … the issue of whether … [alleged injuries to the respondent's right knee] were disabilities as defined in section 5 of the Act … ". The appellant's counsel suggested that each of Girrawheen Tavern and Hart is distinguishable on its facts (as has been suggested by Packington CM in a number of cases to which we were referred) and also that there is contrary authority in the form of Re Monger; Ex parte United Construction Pty Ltd [2002] WASCA 253.
10 The first of those propositions is not sustainable. As I have said, in Girrawheen Tavern Wheeler J said that the word "disability" in s 93D(5) is used in its ordinary meaning rather than in the defined meaning and concluded that a determination of the "degree of disability" looked simply to the condition of the worker. What she said was plainly of general application to cases concerning s 93D(5) and s 93E(3). It could hardly be otherwise, given that the issue was one of construction of the Act. That seems to me also to have been made plain in Hart (at [14] and [19]).
11 I am also not prepared to uphold the second proposition. The only ground of appeal in which the meaning of the word "disability" was apparently raised (ground 1) seems to have been approached by the parties upon the assumption that the word bore its defined meaning (as provided by s 5 of the Act). The case involved a dispute concerning the degree of disability of a worker. The dispute was referred to a Review Officer under s 93D(10) of the Act. The worker had suffered different injuries at different times. One of the injuries of which he complained was what was described as avascular necrosis of both hips. It was common cause that this did not originate from a work accident. However, the worker contended that an accident that he had suffered at work "lighted up this condition, causing it to become painful" ([13]) of the judgment, per Anderson J). The employer's insurer denied liability in respect of his hip problems. The two leading judgments were written by Anderson J and Fitzgerald AJ. The other three judges (it was a five-judge court) agreed
(Page 7)
- with both of them. However, only Fitzgerald AJ dealt with ground 1. The issue raised by that ground was described by him as follows (at [62]):
"The injury to … [the worker's] foot constituted a 'disability' under par (a) of the definition. The 'disease' to which his hip was subject prior to the injury to his foot did not constitute a disability under pars (c) or (d) unless his employment had contributed to his contracting the disease, or to the recurrence, aggravation or acceleration of the disease, 'to a significant degree'. United Construction submitted that, on the proper construction of the definition of 'disability' in s 5, the Review Officer was bound, when determining the degree of … [the worker's] disability as a result of his accident, to disregard his hip problems, including any hip problems that resulted from his accident, unless his employment, including his accident, had contributed to his hip problems 'to a significant degree'."
"While there might be cases in which a worker's total disability is to be determined by reference to more than one paragraph of the definition of 'disability', … [the worker's] damages claim is based solely on his accident, which he alleges was caused by United Construction's tort, not on his accident combined with other circumstances of his employment that he does not allege were tortious. The disability for which … [the worker] claims damages is solely referable to par (a) of the definition of 'disability', which is separate and self-contained. The Review Officer was required to determine what disability … [the worker] has as a result of his accident. Any hip problems that he has as a result of his accident form part of that disability and … [the worker's] employment was the cause of those hip problems. Any hip problems that he has that do not result from his accident are not part of his disability for the purpose of his damages claim irrespective of whether or not his employment contributed to those hip problems significantly or at all.
United Construction's argument based on the construction of the definition of 'disability' in s 5 should be rejected."
13 It seems to me to be reasonably plain from what was said by Fitzgerald AJ that the submission advanced before him proceeded on the
(Page 8)
- assumption, which was not questioned, that the definition of "disability" in s 5 of the Act was applicable and that the Review Officer was required to assess the extent of the disability suffered by the worker as a result of the accident and not from some other cause. Fitzgerald JA did not consider, and was seemingly not invited to consider, the question whether the word "disability" carried its defined meaning rather than its ordinary meaning for the purposes of the reference. While he plainly assumed that it did, and consequently that the Review Officer was required to deal with issues of causation, as I read his judgment he did so only for the purpose of construing the definition of "disability" in s 5 in the light of the submissions that had been directed to it. As I have said, these submissions assumed that it was the defined meaning that was applicable.
14 That that is so seems to me to be supported by what was said by Anderson J (with whom, as I have said, the other three judges were also in agreement). Although he did not separately deal with ground 1 (and agreed with Fitzgerald AJ in that respect), he considered that causation issues would be dealt with in the course of the damages action. After referring to medical evidence to the effect that the avascular necrosis developed from causes unrelated to the accident but was aggravated by the accident, rendering it symptomatic, he said (at [14]):
"No doubt there will be the usual evidentiary difficulties with respect to causation if the damages action proceeds. When … [the worker] first reported the accident and described his injuries, he made no mention of a hip injury and in the first medical report there is no mention of pain in the region of the hip or groin. These potential difficulties with respect to proof of causation do not concern us at present."
15 In circumstances in which the point was seemingly not argued and in which Anderson J considered that causation issues would be resolved in the course of the damages action, it seems to me that what was said by Fitzgerald AJ should not be applied in preference to the later judgments of this Court in Hart and Girrawheen Tavern. Moreover, those cases have since been repeatedly applied by the Court of Appeal: see, for example, Casserly at [26] and [33]; Marshall v Lockyer [2006] WASCA 58 at [312], per McLure JA; Hammond Worthington v De Silva [2006] WASCA 180 at [83] per Buss JA; and Murray River North Pty Ltd v Midgley [2006] WASCA 104 at [21] per Pullin JA (with whom Wheeler JA agreed).
16 The appeal should consequently be dismissed.
(Page 9)
17 WHEELER & PULLIN JJA: This is an appeal against the decision of Compensation Magistrate Hogan, who dismissed an appeal against the decision of Review Officer St George.
18 The issue in this case is whether the Review Officer was obliged to decide whether a disability was "work related" in determining whether a "degree of disability" was more or less than the "relevant level" as defined in Pt IV Div 2 of the Workers' Compensation and Rehabilitation Act 1981 (WA).
Proceedings before the Review Officer
19 On 19 April 2005 the respondent lodged a form 22 "Referral of Question of Degree of Disability" concerning a dispute about whether the degree of disability the respondent then claimed to suffer from was not less than 30 per cent. The disabilities were described as:
(a) right knee;
(b) cervical spine;
(c) left arm/shoulder and right arm/shoulder.
The respective disabilities (ie injuries) were said by the respondent to have occurred in:
(a) 1986 and 2000/2001;
(b) November 1988; and
(c) 2002.
20 The form 22 was supported by a report from a Dr Kennedy, which provided the respondent's history in terms of each of the claimed injuries having occurred in the workplace.
21 The appellant did not agree with the respondent's claimed degree of disability and the issue was referred to a Review Officer. The appellant described the issues in dispute as:
"• Causation in respect to the nominated right knee and cervical spine injuries.
• Whether the neck injury is a consequence or symptom of the left and/or right shoulder injury.
• Whether the worker is entitled to aggregate any permanent disability levels of the right knee and/or cervical spine.
(Page 10)
- • The worker's degree of disability."
22 The appellant argued that the disability to the right knee and cervical spine were not caused by a work-related injury. The Review Officer determined that:
"… the assessment of the worker's permanent percentage disability pursuant to the Form 22 filed on 19 April 2005 is as follows:
1. Right knee - 12% of 70% (Dr Kennedy 27 January 2005) - 8.4%;
2. Cervical spine - 16% of 40% (Dr Kennedy 27 January 2005) - 6.4%;
3. Right arm - 10% of 90% (Mr Campbell 4 October 2005) - 9%;
4. Left arm - 10% of 90% (Review Officer's assessment) - 9%."
23 As a result, he concluded and ordered that the respondent's "level of disability" was "not less than 30%".
The appeal to the Compensation Magistrate
24 The appellant appealed to Compensation Magistrate Hogan. There were several grounds of appeal, only one of which is now relevant and which read:
"The review officer erred in law in considering assessments of permanent disability of the respondent's right knee and cervical spine in determining the respondent's degree of disability.
Particulars
(a) The review officer wrongly interpreted and or applied Girrawheen Tavern v Joseph [2003] WASCA and Hart v Griffin Coal Mining Pty Ltd [2005] WASCA.
(b) The review officer failed to give any adequate reasons for rejecting the appellant's submissions set out in the outline of submissions dated 23 September 2005 at paragraphs 9-14."
(Page 11)
25 The appellant submitted that the disabilities to the right knee and cervical spine were not caused by a work-related injury.
26 The Compensation Magistrate held that the Review Officer had erred in failing to give adequate reasons for rejecting the appellant's submissions. The Compensation Magistrate then considered the issue herself, referred to passages of the judgment in Hart v Griffin Coal Mining Co Pty Ltd [2005] WASCA 130 and Girrawheen Tavern v Joseph [2003] WASCA 244, and concluded at [40]:
"Whilst I agree that the review officer failed to give adequate reasons for rejecting the appellant's submissions on the issue of causation I do not agree that the review officer wrongly interpreted [or] applied the Girrawheen case or Hart. Given the interpretation of 'disability' by Wheeler J (as affirmed by the Hart decision) that it is the condition of the worker that is to be assessed then it is not correct to say that the requirement is that the worker must establish that it has been agreed or determined that each injury is a disability. It is the overall condition of the worker that is to be assessed. It is ultimately for the District Court to untangle potentially complex questions of causation. The fifth ground of appeal is therefore dismissed."
27 The Compensation Magistrate dismissed the other grounds and upheld the Review Officer's decision.
The grounds of appeal in this Court
28 The grounds of appeal to this Court read as follows:
"1. The learned Compensation Magistrate erred in law in determining that the alleged disabilities to the Respondent's right knee and cervical spine should have been included in the assessment of the respondent's degree of disability (as defined in section 93E(1) Workers Compensation & Rehabilitation Act) in that she failed to consider either properly or at all the issue of whether those disabilities were disabilities as defined in section 5 of the Act such as to permit them to be aggregated with other accepted disabilities for the purpose of that assessment.
2. The learned Compensation Magistrate was wrong in law in holding that there was unchallenged evidence proving
- the injuries to the Respondent's right knee and cervical spine were work related when there was no such evidence properly before the Review Officer.
- (a) The worker gave no evidence at all that the injures to his right knee and cervical spine were work related.
(b) To the extent that a report of Dr Kennedy was before the Review Officer indicating that those injuries were work related, that report was based on an alleged history provided by the Respondent and was hearsay and not capable of supporting such a determination."
The appellant's submissions
29 The appellant submitted:
(a) that Girrawheen Tavern, "properly understood", is authority for the proposition that an aggregation of separate work-related injuries is permissible when seeking to establish whether a worker's degree of disability is not less than the relevant level and that it is therefore distinguishable from the present case;
(b) that Hart is a decision dealing with a disability superimposed upon a pre-existing condition or disability. The facts in that case fell within the definition of "disability" of both s 5(a) and (d), and can be distinguished from the present case;
(c) that in Eclipse Resources v Reeves, unreported; CM-42/04; 13 September 2004, and in Alcoa v Paladini, unreported;CM-128/05; 6 June 2006, Packington CM held, and Fitzgerald AJ in Re Monger; Ex parte United Construction Pty Ltd [2002] WASCA 253 held, in effect that the Review Officer did have to decide whether the disability was the result of a work-related accident;
(d) that "[i]t cannot be that a person who suffers a serious back injury at home (ie one which would attract a percentage disability of 30%) and who then being on light duties suffers (to use an extreme example) a paper cut at work, could aggregate the two to obtain access to common law entitlements";
(Page 13)
- (e) that there must be some connection between the disability which is to be assessed, and the workplace; the connection being required by the definition of disability in s 5;
(f) that causation thereby becomes an issue to be dealt with by the Review Officer;
(g) that there was no evidence that injuries to the respondent's right knee and cervical spine were work related because the respondent did not give evidence to that effect before the Review Officer.
In summary the appellant advanced two points, the first being that, as a matter of law, the Review Officer was obliged to determine whether the disability was work related and, secondly, that there was no evidence to prove such a connection in this case.
Did the Review Officer have to determine whether disability was "work related"
30 It is true (as the appellant submitted) that Pt IV Div 2 of the Act applies in relation to the awarding of damages against a worker's employer in respect of a disability suffered by a worker if it was caused by the negligence or other tort of the worker's employer. See s 93B(1). It is also true (as the appellant submitted) that "disability" in that section is a reference to disability as defined in s 5 meaning, inter alia, an injury by accident arising out of or in the course of employment. Section 93C states that if the division applies, a court is not to award damages to a person contrary to the division. In short, those provisions state when the division applies and what the constraint is on a court entertaining a claim for damages.
31 However, the existence of those provisions do not mean that, when a Review Officer is given the limited task of resolving a dispute between a worker and an employer about the "degree of the disability" of the employee, the Review Officer must determine whether or not the disability is a work-related "disability". The phrase "degree of disability", where it is used in s 93D and s 93E, is used in its ordinary, rather than in its defined meaning; the word refers to the condition of the worker: Girrawheen Tavern (supra) at [55], Hart (supra) at [14]. It has been decided in three decisions of this Court that the Review Officer is not concerned with any question of what caused the disability. In Girrawheen Tavern (supra), Wheeler J said at [55] (McKechnie J agreeing):
(Page 14)
- "Questions of causation will be issues to be raised and determined at trial, and may affect the quantum of any damages awarded."
- In Hart (supra), Pullin JA said at [20] (Steytler P and Wheeler JA agreeing):
"… the task of the Review Officer is to determine the extent of the disability. It is not the task of the Review Officer in making such a determination to determine what part of the disability is caused by the degenerative disease and what part is caused by the compensable workplace injury."
In Casserly v Alcoa of Australia Ltd [2006] WASCA 150, Steytler P (Wheeler JA and Pullin JA agreeing) said at [26]:
"… there is nothing in s 93D(6) which requires the medical practitioner to address the question of causation. Nor, in my opinion, should there be. That is a question to be determined by the trial Judge in the common law proceedings: Girrawheen Tavern at [52] - [55] per Wheeler J."
"Questions of causation do not have to be addressed by the Review Officer. As a result, the doctor was not required to consider whether the disability was sustained by events occurring on the date specified by the worker. See Girrawheen Tavern v Joseph(supra) and Hart v Griffin Coal Mining Co Pty Ltd…"
33 The statements made in those decisions must be followed. The statements are not to be given a restricted meaning.
34 Packington CM in Alcoa Australia v Paladini (supra) and in Cuellar-Castellanos v CPE Health Care, unreported; CM-44/05 (Packington CM); 1 February 2006 said, in effect, that a Review Officer does have to consider whether the disability is work related for the purpose of assessing the worker's degree of disability under s 93D(2). What Packington CM said in those two cases is, with respect, incorrect and should not be followed.
35 The reason why the Review Officer does not have to decide whether the disability is "work related" is as follows. Parliament has imposed a constraint on a court's power to award damages, but only in cases where,
(Page 15)
- inter alia,there has not been agreement or a determination about the worker's degree of disability. The Act does not require an examination of the question about whether the disability arose out of, or was caused by, an injury or disease which occurred at work. These are matters for trial in the ordinary way. When Packington CM said in the Alcoa case at [29] that it "surely cannot have been Parliament's intention" that non-work-related conditions should be assessed under s 93D(2), he did not suggest that there was any express provision requiring the determination of such an issue. An express provision to that effect would have been necessary because Pt IV Div 2 of the Act contains provisions which are for the sole purpose of constraining courts from awarding damages in certain circumstances. There is a presumption that the legislation is not to be read as ousting the jurisdiction of the courts unless this appears "clearly and unmistakably": Magrath v Goldsbrough Mort & Co Ltd (1932) 47 CLR 121 at 134, and legislation is not to be read as interfering with the "basic right" (see Raymond v Honey [1983] 1 AC 1 at 12 - 13) of unimpeded access to a court to secure the appropriate remedy unless the legislation uses clear words to bring that about: R v Lord Chancellor;Ex parte Witham [1998] QB 575, at 584. There is clear and unmistakeable language in the Act which has the effect of diminishing the jurisdiction of the courts in the broadest sense of that expression (see Australian Securities and Investments Commission v Edensor Nominees Pty Ltd [2001] HCA 1, at [65]; (2001) 204 CLR 559, at 590), and has the effect of ultimately impeding the rights of access to the court or the point where an award of damages might otherwise be made. However, the express provision of the Act diminishing the jurisdiction of the Court and impeding access to the Court to secure an award of damages is only to apply if the specified determination or agreement concerning the degree of disability has not been made. The legislation does not clearly and unmistakeably, or at all, require issues about whether the disability is "work related" to be determined by a Review Officer.
36 The appellant placed reliance on what was said in Casserly by Steytler P at [26], which was that s 93D(6) assumes that the medical evidence will relate to the disability which will be the subject of common law proceedings. It is true that such an assumption exists. It is hardly likely that a person will seek a determination in relation to some disability which is not work related at all. There would be no need for any determination in such a case. The assumption is always that the disability is work related. Form 22 ("Referral of question of degree of disability") and Form 23 ("Notice of referral of question of degree of disability") both describe the parties as "worker" and "employer". Both forms contain a
(Page 16)
- box to be filled out showing "date disability occurred", meaning the date of the injury, and both forms refer to "degree of disability", meaning the condition of the worker. The content of the forms therefore constitute an assertion by the worker that his disability is the result of an injury which occurred while he was employed by the employer. However, if the employer wishes to dispute matters not concerned with the existence of the disability, for example, whether there was any employment relationship between the parties, or whether any injury occurred at work, or whether the claimed disability was caused by a work injury or disease, then those disputes are for resolution in the courts and not for resolution in the proceedings before the Review Officer. Steytler P in Casserly did not say that the Review Officer was obliged to entertain, and then determine, whether the disability was work related.
37 The appellant also referred to comments by Fitzgerald AJ in Re Monger; Ex parte United Construction Pty Ltd (supra) (Malcolm CJ, Wallwork and Templeman JJ agreeing), which were said to provide support for its contention that a disability must be shown to be "work related". A close reading of Fitzgerald AJ's judgment does not reveal any suggestion that the Review Officer must determine whether a disability is work related or not. Fitzgerald AJ said that "any hip problems" that the worker had in that case that did not result from his accident "are not part of his disability for the purpose of his damages claim", and that the Review Officer was required to determine what disability the worker had "as a result of his accident". This must be understood as a reference to the worker's asserted claim that his disability arose out of "an accident" at work. Fitzgerald AJ did not say that the Review Officer was obliged to determine the relationship between the disability and the workplace. He expressly said that the employer's argument to that effect in that case "erroneously treats both the definition of 'disability' in s 5 and Mr Santos' hip problems compendiously" [62].
38 Alternatively, if Fitzgerald JA in Ex Parte United Construction is properly understood to be indicating that review officers should consider questions of construction, then the decision in Ex Parte United Construction is, to that extent, in conflict with Girrawheen Tavern, Hart and Casserly. The latter should be followed in preference to Ex Parte United Construction.
39 Ground 1 of the appeal must therefore be dismissed.
40 As a result, it is not necessary to deal with ground 2, but for the sake of completeness, it must be observed that there were medical reports
(Page 17)
- recording the history given to doctors by the respondent which linked the disabilities with the workplace. The respondent gave evidence about his condition but did not give evidence (and he was not obliged to give evidence) about whether these conditions had resulted from workplace accidents. He was not cross-examined about the histories that he had given to the doctors. Thus, even if ground 1 had been upheld, ground 2 would have been dismissed.
41 The result is that the appeal must be dismissed.
2