Booth v Aussie Roofing (WA) Pty Ltd

[2000] WADC 131

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   BOOTH -v- AUSSIE ROOFING (WA) PTY LTD [2000] WADC 131

CORAM:   DEPUTY REGISTRAR HARMAN

HEARD:   18 MAY 2000

DELIVERED          :   31 MAY 2000

FILE NO/S:   CIV 270 of 2000

BETWEEN:   JOEL BOOTH

Plaintiff

AND

AUSSIE ROOFING (WA) PTY LTD
Defendant

Catchwords:

Practice - Western Australia - Practice under the Rules of Supreme Court of Western Australia - Application by defendant for summary judgment or alternatively to strike out the action

Legislation:

Workers' Compensation and Rehabilitation Amendment Act 1981, s 93E(3)

Result:

Application dismissed

Representation:

Counsel:

Plaintiff:     Ms S Chng

Defendant:     Mr M Civitella

Solicitors:

Plaintiff:     Trewin Norman & Co

Defendant:     Crisp & Partners

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

Nil

Case(s) also cited:

Kimberly Downs Pty Ltd & Ors v Western Australia & Anor, unreported; SCt of WA; Library No 6414; 25 August 1986

Letang v Cooper [1965] 1 QB 232

1. DEPUTY REGISTRAR HARMAN:  On 4 February 2000 the plaintiff issued a writ of summons which bears the following indorsement:

   "The plaintiff's claims against the defendant of damages for personal injuries suffered by the plaintiff in an accident on 18 April 1994 in the course of the plaintiff's employment with the defendant as a result of negligence by the defendant."

2. The application presently before the Court is for judgment or alternatively to have the action struck out as an abuse of process.

3. The applicant refers to s 93E of the Workers' Compensation and Rehabilitation Amendment Act 1981 the relevant parts of which are as follows:

   "(3)  Damages can only be awarded if -

   (a)   it is agreed or determined that the degree of disability is not less than 30% and that agreement or determination is recorded in accordance with the Regulations; or

   (b)   the worker has significant disability and elects, in the prescribed manner, to retain the right to seek damages and the election is registered in accordance with the regulations.

   (4)For the purposes of subsection (3)(b) the worker has a significant disability if it is agreed or determined that the degree of disability is not less than 16% and that agreement or determination is recorded in accordance with the regulations."

4. The applicant relies upon the affidavit of Stephen Alan Fong sworn 3 April 2000, which is to the effect that there has been no relevant agreement or determination.

5. The essence of the applicant's submission was that the plaintiff was not entitled to damages and it ought not be permitted to commence an action.

6. In my opinion the application is misconceived.  The starting point of any analysis is that there is nothing unlawful in the process of issuing a writ on behalf of a plaintiff who claims that it has a cause of action against a defendant.  Simply because the applicant brings the evidence of a lack of agreement or determination does not mean that it is appropriate for the Court to make any finding in relation to that evidence.  Even if it did, such findings would lead to no useful conclusion as the provision upon which the applicant relies is expressed to prohibit a court from awarding damages.  There is no occasion other than trial when the Court is required to consider whether damages will be awarded for loss.  Even if this action was to proceed with due expedition it is unlikely that the trial would be listed until late in the year 2000.

7. There is no basis upon which to determine the action on either of the alternative grounds that the defendant proposes.

8. During hearing of the application the applicant submitted that it was inappropriate for the plaintiff to bring an action where the plaintiff presently had no right to damages.  In my opinion that submission too is misconceived.  There is a proper distinction to be drawn between loss and damage.  There may be a proper enquiry even at an early stage in an action as to whether a plaintiff has suffered loss.  Damages for loss are a discretionary remedy.

9. The applicant also made some ancillary submissions along the lines that if the action proceeded and the plaintiff was unable to satisfy the provisions of s93E(3) at trial, court time and costs would be wasted.  That be the consequence however it would be inappropriate to allow those considerations to impinge upon the plaintiff's right to commence and maintain proceedings based upon what may be a validly constituted cause of action for which the Court would award damages.

10. It is an interesting feature of the application that the statutory process established by the relevant provision evidently precipitated some action of the plaintiff on 9 December 1999 towards either an agreement or determination.  As of the date of the hearing of the application before me the process which may lead to a determination had not yet commenced, had the plaintiff left commencing the action until any such determination then the action could have been met by the statutory defence of limitation.