Brien v Hamersley Iron Pty Ltd - [2010] WADC 79

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: BRIEN -v- HAMERSLEY IRON PTY LTD [2010] WADC 79

CORAM: DEANE DCJ

HEARD: 6 JULY 2009

DELIVERED : 31 MAY 2010

FILE NO/S: CIV 1295 of 2007

BETWEEN: CHANDELLE BRIEN
Plaintiff
AND
HAMERSLEY IRON PTY LTD
Defendant

Catchwords:

Workers Compensation and Rehabilitation Act 1981 - Whether s 175 of the Act applies in relation to s 23 of the Act - Meaning of the concept of compensation is payable

Legislation:

Workers Compensation and Rehabilitation Act 1981

Result:

Plaintiff's argument on preliminary issue dismissed

Representation:

Counsel:

Plaintiff: Mr S A Millman
Defendant: Mr G R Hancy

Solicitors:

Plaintiff: Slater & Gordon
Defendant: DLA Phillips Fox

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

Mokta v Metro Meat International [2005] WASCA 143
Re Monger; Ex parte Velsberry Pty Ltd [2003] WASCA 9

DEANE DCJ: At the outset in this matter it should be noted that the parties, pursuant to a minute of consent order dated 6 July 2009, agreed the plaintiff have leave to amend the writ of summons to substitute Hamersley Iron Pty Ltd as the defendant in lieu of Pilbara Iron Pty Ltd. The matter did not proceed to trial on 6 July 2009 as there was a preliminary issue to be determined given that the defendant disputes that the plaintiff has a rightful claim to compensation for damages for personal injury in the District Court of Western Australia. Flowing from this a core issue arises, namely whether for the purposes of the Workers Compensation and Rehabilitation Act 1981 ("the Act") compensation was payable to the plaintiff in Western Australia following an alleged injury sustained by the plaintiff at work on 25 August 2004. At the commencement of the hearing counsel for the defendant advised the court that the appropriate reprint of the relevant legislation was that dated 14 September 2001. The date is significant as there were substantial changes to the relevant legislation following that date, including a change impacting upon the manner in which one approaches a claim for compensation in Western Australia in a situation where the claimant may also have been able to claim compensation in another state.
The defendant's position is that s 175 of the Act applies in relation to s 93B of the Act. The plaintiff argues that s 23 of the Act applies so as to dislodge the application of s 175 of the Act with respect to s 93B of the Act. Essentially the plaintiff's argument is that as workers compensation was never paid to the plaintiff in Western Australia but was paid to her in Victoria, s 23 of the Act which applied at the time (given it has since been amended) has the effect that workers compensation was not payable to the plaintiff.
In order to invoke Div 2 of Pt IV of the Act which contains constraints on claims for damages at common law, compensation has to be payable. The argument for the plaintiff is put that if compensation is not payable then Div 2 of Pt IV does not apply.
To place the arguments of the parties in context it is necessary to refer to the factual background to this matter. In that regard the parties put before the court a statement of agreed facts. For the purposes of determining the preliminary issue, although the defendant disputes that the plaintiff suffered the injuries as alleged in her statement of claim, it is not necessary to decide whether and what injuries were sustained or any quantum of damages.
Although the statement of claim does not state with precision where the alleged injury occurred, the parties agree that the defendant is a company that carries on business in Western Australia, including operating the Yandicoogina mine site in Western Australia, which is apparently situated near the town of Newman. In 2004 the plaintiff was employed by a private company, Titian Nominees Pty Ltd as a geologist. In 2004 prior to 25 August 2004, the defendant entered into a contract with Titian Nominees Pty Ltd for the provision of geological services by Titian Nominees Pty Ltd to the defendant, relevant to a drilling program being carried on at the Yandicoogina mine site. In August 2004 in her employment as a geologist with Titian Nominees Pty Ltd, the plaintiff was working at that particular mine site providing services pursuant to the contract. The work involved the plaintiff performing tasks that Titian Nominees Pty Ltd had agreed to perform pursuant to its contract with the defendant relevant to the provision of geological services and included the plaintiff supervising the operation of a drilling rig and logging core samples.
The defendant admits the contract and the location of the mine site but nothing further. In addition the defendant has raised an issue in its defence, alleging there was a written agreement between Titian Nominees Pty Ltd and the defendant whereby Titian Nominees Pty Ltd agreed in part to undertake geological services for the defendant at the mine site, being work which was directly a part or process of the defendant's mining business, although the defendant alleges that at all material times the plaintiff was employed by Titian Nominees Pty Ltd. Following from this the defendant argues that if the plaintiff was present at the mine site and if she was injured as alleged then she was employed by Titian Nominees Pty Ltd at the relevant time. Further it is asserted that if the plaintiff was present at the mine site and injured then it occurred in the execution of work which Titian Nominees Pty Ltd were performing for the defendant pursuant to the contract. The defendant submits that these matters are of significance when one comes to consider the operation of s 175 of the Act as it then was.
Counsel for the plaintiff argues that in the end the application of s 175 of the Act as it then was, is not of particular moment or consequence and stresses that the focus of the argument in this matter relates to the application of s23 of the Act. The plaintiff's position is that having received workers compensation payments in Victoria as contemplated in part by s 23 of the Act then it is unnecessary to turn to s 175 of the Act because s 23 of the Act by its operation immediately removes the plaintiff from the purview of the Western Australian legislation. The argument is that having received workers compensation in Victoria, the plaintiff is no longer a person entitled to receive workers compensation in Western Australia and is therefore no longer a person to whom compensation is payable, given that the plaintiff has already received compensation in Victoria. For this reason the argument advanced on behalf of the plaintiff is that she is not required to meet any criteria pursuant to the workers compensation legislation of Western Australia with respect to bringing any action for damages for personal injury.
In my view however it is necessary, given the argument advanced on behalf of the defendant, to consider the application of s 175 of the Act to the plaintiff in this case. To that end the evidence given at the hearing of the preliminary issue in this matter by Mr Etheridge is relevant. He is a geologist with some 20 years experience and in 2004 at the relevant time was working for the defendant on the project at the Yandicoogina mine site. The project involved drilling and collecting diamond core and geologically logging and sampling it. As the defendant employed insufficient geologists of its own to carry out this work, it employed contract geologists to assist, this included the plaintiff. Mr Etheridge recalled meeting the plaintiff at the Yandicoogina mine site in April 2004 following speaking to her over the telephone regarding the plaintiff's interest in a job at the mine site working as a geologist. He noted the plaintiff from time to time working at the site measuring, marking and recording data from drill core samples. This work according to Mr Etheridge was an integral part of the process carried out by geologists employed by the defendant at the site. Whilst Mr Etheridge did not directly supervise the plaintiff on a daily basis in the sense of giving the plaintiff direct orders, he nonetheless regarded himself as her supervisor. His recollection was that the plaintiff continued to work at the project until about November 2004 when it ended. It would seem however from a form submitted by the plaintiff relevant to her alleged injury that she ceased work as a result of this on 30 August 2004. The distinction between the two dates on which the plaintiff apparently ceased work at the mine site is not however of any consequence in the context of the preliminary issue before the court.
Having heard the evidence of Mr Etheridge, which was largely unchallenged, there is no doubt pursuant to s 175 of the Act that at the time of the occurrence of the alleged disability the work on which the plaintiff was employed was directly a part or process of the trade or business of the defendant. The relevance of this is that s 175, in particular circumstances, renders a principal who is not a direct employer of a worker (as the defendant in this case was not a direct employer of the worker), an employer for the purposes of the Act. I accept the argument on behalf of the defendant that this includes a reference to the purposes of the Act with respect to constraints on claims for damages at common law.
In the statement of claim the plaintiff alleges that as a result of her stature, she was required to reach and stretch in an awkward manner to reach certain core samples. On an occasion when she reached across a conveyer belt which was carrying core samples, the plaintiff claims she experienced a click in her right shoulder and suffered a sharp shooting pain down her right arm. Further, it is alleged that the frequency and duration of this task and the system of work in place, in combination with the postural limitations of the plaintiff, an injury was caused, being essentially an injury to the cervical spine.
It is common ground that the plaintiff did not receive any workers compensation relevant to her alleged injury in Western Australia. The plaintiff has however made a claim for and received workers compensation under Victorian law. The plaintiff asserts that she has not recovered from the injury she allegedly sustained on 25 August 2004. This occurred prior to the Workers Compensation Reform Act (no 42 of 2004) coming into force and so it is said by virtue of s 23 of the Act (as it then was) in combination with the plaintiff having received workers compensation payments made pursuant to the law of the state of Victoria, she is not a person in respect of whom s 93B(1)(b) of the Act applies and therefore Div 2 of Pt IV of the pre‑amendment Act cannot apply to the plaintiff. The argument on behalf of the plaintiff is that she is not required to and does not have to satisfy the provisions of Div 2 of Pt IV of the Act before she is entitled to bring a claim for damages at common law. If it is determined however that the provisions of Div 2 of Pt IV of the Act (as it existed at the time of the alleged injury) applies then she would have to satisfy the relevant requirements.
It is not clear on what date the plaintiff returned to Victoria following her alleged injury in Western Australia, however it is apparent from exhibit 2 tendered at the hearing, that by a Conciliation Outcome Certificate dated 7 February 2005 a conciliation officer in Victoria determined that all weekly payments of compensation and all reasonable medical expenses and like expenses were to be made in accordance with Victorian legislation. It would appear that following this, QBE Workers Compensation (Victoria) Limited paid those amounts of money to and on behalf of the plaintiff in Victoria. This was in accordance with the requirements of the Victorian Workers Compensation Act.
By form 22 (Referral of Question of Degree of Disability) dated 22 August 2005, the plaintiff referred to the Director of Conciliation and Review appointed under the Western Australian Workers Compensation Act the question as to whether her degree of disability was not less than the relevant level for the purposes of s 93D of that Act. In that particular form the plaintiff described her disability as "permanent loss of full and efficient use of Item 36A thoraco‑lumbar spine, Item 36B cervical spine and Item 13 right shoulder and arm" and further said that weekly payments commenced on 14 March 2005 with a degree of disability assessed by a medical practitioner at 23.5 per cent. Following this by form 23, (Notice of Referral of Question of Degree of Disability) dated 13 October 2005 the defendant objected to the plaintiff's assessment that her degree of disability was not less than 16 per cent.
As at this point in time the question of the degree of the plaintiff's disability has not been agreed by the defendant and has not been determined pursuant to the dispute resolution provisions of the Western Australian legislation. Relevant to this however, at the hearing counsel for the plaintiff made a number of points relevant to form 22. It is not required that such a form be completed in order to claim workers compensation in Western Australia, as the document is designed to commence proceedings at WorkCover for the determination of a level of disability in order to satisfy the requirements of Div 2 of Pt IV of the Act. In this particular matter, counsel for the plaintiff advised the court that a form 22 was filed on behalf of the plaintiff by her previous solicitors, but that aspect of the matter has been adjourned pending the outcome of the preliminary issue in the matter before this court, taking into account that the position of the plaintiff is that as compensation is not payable, the provisions of Div 2 of Pt IV of the Act do not apply to her situation and she is therefore not subject to any constraints on a claim for damages at common law. Counsel for the plaintiff advised the court that the form 22 was filed on behalf of the plaintiff in Western Australia simply to preserve her situation in terms of pursuing a claim for damages for personal injury in Western Australia, rather than being filed relevant to any potential claim for compensation payments pursuant to Western Australian law. If the court were to find that s 175 of the Act in combination with s 93B of the Act applies to the plaintiff, requiring her to obtain an assessment of the relevant level of disability then counsel foreshadowed that the plaintiff would proceed with her application pursuant to form 22. For that reason it was submitted that even if the defendant were to succeed in relation to its argument on the preliminary issue, the plaintiff would still be able to pursue her claim for damages for personal injury in Western Australia or certainly nothing further could occur with respect to the plaintiff's action until she obtained a percentage of disability assessment.
Counsel for the plaintiff contends that the plaintiff can still pursue her claim for damages for personal injury in Western Australia, but could not be awarded damages until such time as she obtains an assessment that she has a permanent disability of not less than the prescribed percentage. It is apparent that there is little prospect, on the material currently available, that there will be an agreement between the parties as to a level of permanent disability.
It should be noted that counsel for the defendant indicated that he was not aware that a form 22 had been filed on behalf of the plaintiff and it was not the subject of any agreement between the parties prior to this hearing. However, counsel for the defendant conceded that if the defendant were to succeed in relation to the preliminary issue in this matter, then an appropriate order would be for a stay until the issue in the workers compensation jurisdiction was finalised. Essentially the submission on behalf of the defendant was were this matter to be determined in its favour then the assessment of disability was a question for another time and the outcome relevant to the plaintiff pursuing a claim for damages for personal injury would be subject to a determination made elsewhere with respect to an assessment of percentage of permanent disability.
Following amendments to the relevant legislation in Western Australia after 1999, leave was no longer required for a person in the plaintiff's position to commence proceedings for damages for personal injury. However it was necessary that the employer and worker agreed the extent of the workers permanent disability or, if unable to do so, then the worker was required to have the extent of the permanent disability determined by the Director of Conciliation and Review, pursuant to the Act. With respect to this matter a permanent disability of not less than 16 per cent had to be agreed or assessed in order for a claim for damages to proceed. That percentage changed from 2005 but that is not relevant to this matter.
It is common ground between the parties that there has been no agreement as to the extent of any permanent disability, nor up to this point in time has such been assessed for the purposes of the Western Australian legislation.
Nonetheless in a Writ of Summons dated 26 June 2007 the plaintiff claims damages from the defendant for injuries allegedly suffered in the course of the plaintiff carrying out work at the defendants mine site on the 25 August 2004. Counsel for the defendant argues that in order to be able to pursue her claim for damages for personal injury the plaintiff requires either an agreement or assessment of the permanent level of disability and further submits that there is a link between this and Div 2 of Pt IV of the Act. This contains a number of sections including s 93E which places a restriction on the awarding of damages and payment of compensation.
Section 93C makes it plain that if the Division applies a court is not to award damages to a person contrary to the division. Section 93B provides:
"(i)This Division applies to the awarding of damages against a workers employer independently of this Act in respect of a disability suffered by a worker if –
(a)the disability was caused by the negligence or other tort of the workers employers; and
(b)compensation has been paid or is payable in respect of the disability under this Act, or would have been paid or be payable but for Section 22.
(ii)This Division applies even if the damages resulting from the negligence or other tort of the workers employer are sought to be recovered in an action for breach of contract or other action."
As compensation has not been paid to the plaintiff in Western Australia that particular aspect of s 93B(1)(b) is not relevant and so the focus according to the defendant's argument is on the issue of whether it would "be payable" in respect of a disability under the Act.
One then moves to a consideration of s 23 of the Act upon which the plaintiff relies to support the argument that compensation is not payable and that therefore Div 2 of Pt IV is not applicable to the plaintiff's claim. Section 23 is relevant to a situation where a claim exists elsewhere as well as in Western Australia. It is common ground that the plaintiff has made a claim for compensation in respect of a disability under the law of another state being Victoria. Therefore compensation under this Act (being the Western Australian legislation) shall not be allowed to the claimant (being the plaintiff) nor shall any person having any such claim under any such law claim under this Act unless that person declares in writing that they have not claimed, and will not claim, compensation for the disability under any law. Clearly, the plaintiff has not made such a declaration in this case.
It is important to note that s 23 is in language or terms which contemplate that compensation under the legislation shall not be allowed, as distinct from shall not be payable. The defendant argues that it does not follow from s 23 that because a claim for compensation shall not be allowed in Western Australia that it is therefore not a claim that was not payable in Western Australia. The point is made that the meaning of "not allowed" is quite different from the meaning of "not payable" and that it is not a matter of mere semantics, as counsel for the plaintiff suggests in his argument.

Relevant to s 23 the two scenarios that are considered to arise after a disability has occurred in the sense of the definition of 'disability' in the Act which relevantly for these purposes means;
"(a)A personal injury by accident arising out of or in the course of the employment, or whilst the worker is acting under the employers instructions."
Section 18 of the Act then gives rise to liability of an employer to pay compensation to a worker who suffers disability subject to the Act.
In support of the defendant's position counsel referred to Mokta v Metro Meat International [2005] WASCA 143, not because it is a case directly on point, but because it was submitted that the situation was parallel to the current matter in so far as it relates to s 18 of the Act. Unlike the current situation however, the circumstances in Mokta's case have no relevance to s 23 of the Act, as it was confined purely to a situation which arose in Western Australia. Mrs Mokta was injured at work prior to the amendments to the Act which removed the requirement for leave to be obtained before one could proceed to claim damages at common law for personal injury. Nonetheless the matter proceeded on the basis that the amendments still applied to the claim because Mrs Mokta never applied for leave. Although Mrs Mokta attempted to obtain an assessment of permanent disability, she was unable to do so because the Director decided the Act had not been complied with as no notice of a claim had been given, and further the worker had not submitted to a medical examination as required by s 64 of the Act. Therefore similar to the current matter, albeit for a different reason, Mrs Mokta had not obtained a level of permanent disability assessment and there was no agreement with the employer as to her level of permanent disability.
In this matter the plaintiff, as has previously been noted, has no agreement relevant to permanent level of disability and has not obtained an assessment of permanent disability in Western Australia. Although in this case the Court was not advised as to the specific criteria which exist in Victoria, it would appear that whatever was required was satisfied as the plaintiff has been paid compensation in Victoria. Mrs Mokta was unable to proceed with her claim for workers compensation in the absence of notice and because she had not submitted herself for a medical review. As a result she was not entitled to enforce her right for a claim for damages, given she had failed to meet the necessary criteria in order to be able to do so. The question then arises as to whether in those circumstances compensation was payable or not. The argument advanced on behalf of Mrs Mokta was that compensation was not payable and therefore the constraints provisions relevant to a claim for damages did not apply to her claim. This argument however did not succeed.
Initially an order was made in the District Court staying the action brought by Mrs Mokta as she did not have an assessment of permanent disability. Although she attempted to obtain such an assessment she failed to do so for the reasons previously stated. Following this there was an attempt to have the stay lifted on the basis that compensation was not payable and therefore the constraints provisions did not apply. That argument failed and the action was struck out, following which there was an appeal.
On appeal the issue for consideration was whether, with respect to the application of the constraints provisions in relation to a damages claim compensation was or was not payable. Clearly, if it was determined compensation was payable, the provisions of Div 2 of Pt IV would apply and damages could not be awarded contrary to that division. There could be no award unless there was an agreement as to the degree of permanent disability or a determination of the extent of permanent disability being of or above the nominated level.
Somewhat curiously the argument for the appellant was that she didn't suffer a disability at all and so the constraints provisions did not apply. Clearly, such a contention was at odds with respect to an earlier application for payment of compensation, which necessarily must have been based on a contention that the appellant had suffered disability. That argument also failed.
In the appellant's statement of claim she alleged she had suffered a disability, being a personal injury by accident arising out of or in the course of her employment. If that were so, it was a disability as defined in s 5(1)(a) of the Act. It was submitted that if the appellant suffered a disability, because of a decision of the review officer that she had not complied by giving notice and further had not submitted herself for a medical examination, then compensation was not payable. His Honour Justice Pullin on appeal, made reference in the course of his judgment to s 18 and s 21 of the Act, noting the effect of those sections is that an employer comes under "a liability to pay" compensation ipso facto from the date of incapacity resulting from the disability and therefore once such incapacity is suffered compensation is payable "instanter". In this matter counsel for the defendant argues that because s 18 of the Act reflects the liability of an employer to pay compensation arising from the occurrence of disability, liability arises on and as from the date of the occurrence of the disability, which in relation to this matter was 25 August 2004.
It is to be noted that the claim for compensation made by the plaintiff in Victoria must have occurred subsequent to that date but before 15 November 2004. In his judgment Pullin J drew a distinction between the issue as to whether compensation is payable and the situation where a worker was unable to enforce payment of compensation through proceedings.
In relation to s 64(1) of the Act two consequences are provided for. The first is a suspension of and then a cessation of the right to "take or prosecute any proceedings under this Act" and then the suspension and cessation of the "right to compensation". In examining those issues Pullin J was of the view to that point, that the liability of the employer to make payments would continue and compensation will be "payable" but the worker will not be able to enforce payment through proceedings. However, s 64(1) also provides for suspension of and cessation of the "right to compensation" which in his view did not merely bar the remedy, but removed the right which must, he concluded also relieve the employer of the correlative duty or liability to pay compensation which will only operate prospectively. The liability to make payment of compensation which is payable before the operation of s 64 will remain, as in many cases compensation would already have been paid. If it is the case that compensation payments had not been made then the worker would not be able to enforce such payment, because of the prohibition on taking or pursuing proceedings under the Act. Therefore if Mrs Mokta did suffer incapacity as a result of a disability, compensation was payable from the time that the incapacity arose up until the cessation of the right to future payments. Thereafter compensation would still be payable, albeit unenforceable. Put in another way it does not mean compensation was not payable from the point at which the disability arose. Rather it may mean that after a particular point in time, the right to be paid compensation is not enforceable as distinct from compensation not being payable, in the sense that the right exists but is not enforceable and therefore cannot be pursued.
Similarly, if pursuant to s 84(1) notice of the occurrence of a disability is not given as required it does not mean that compensation is not payable, rather it results in the right to payment of compensation being unenforceable. Counsel for the defendant submitted that the fact that the right is or becomes unenforceable does not retrospectively render compensation "not payable" for the purposes relevant to the constraints on the payment of damages provisions in the legislation. In the case of Mokta, Pullin J also drew a distinction between s 22 of the Act and s 64(1) and s 84(1) of the Act. Section 22 affects the initial right to compensation in certain circumstances relevant to serious and wilful misconduct on the part of the worker. Where such circumstances apply the right to compensation is removed from the moment that incapacity arises . Section 93B operates where no compensation will be paid and no compensation is ever "payable" (but would have been "payable" but for those matters contemplated in s 22). The result is therefore that if s 22 applies, there is never a right to compensation in the sense that it was never payable from the point at which disability arose. One is not dealing with a right that exists subject to complying with certain requirements in the Act, rather, one is dealing with a right that was never enforceable and as a matter of logic one cannot disallow a right which never existed in the first place.
The defendant in this case argues that if a worker has a potential right to compensation, whether the compensation is payable or not, s 22 of the Act being the only set of circumstances which if applicable means compensation is not payable, then one still is obliged to comply with the damages constraints provisions with respect to an accident occurring at work in Western Australia, if one wishes to sue the employer under the Act for an award of damages. It is submitted that there is no logical or sensible reason to make an exception in relation to a worker such as the plaintiff in this case, who elects not to claim compensation in Western Australia but does so in Victoria, then having the advantage of being able to claim damages against their employer in Western Australia without first having obtained an agreement as to the level of permanent disability, or an assessment to the level of permanent disability which that worker would have been required to do if they had claimed compensation from their employer in Western Australia in the first instance.
Essentially, it is said that is what the worker in Mokta's case attempted to do, as she elected not to give notice or submit herself for a medical examination, resulting in her no longer having a right to enforce her claim for workers compensation.
If the appeal had not been dismissed, then Mrs Mokta would have been permitted to proceed with a claim for damages for personal injury, having avoided the provision of constraints on damages purely because of the particular choices that she made. That it is said is clearly not the intent of the legislation. Section 23 is at the heart of the plaintiff's argument that she has a right to make a claim for damages in the absence of an agreement with the employer as to the level of permanent disability or an assessment of such by the relevant authority in Western Australia. Section 23 however, unlike s 22 does not contemplate the right to compensation not arising from the moment disability occurs. Rather it contemplates two alternative scenarios, either of which must occur subsequently to the disability arising. If a claim is made for compensation under the laws of another State, as has happened in this case, and compensation has been paid to the plaintiff as again has happened in this case, then compensation shall not be allowed in Western Australia nor shall any person have such a claim in Western Australia, unless that person declares in writing that he has not claimed and will not claim compensation for the disability under any such law.
I accept the argument for the defendant that the import of this is that compensation in Western Australia shall not be allowed, as distinct from compensation in Western Australia is not payable. It follows as a matter of logic that if no claim for compensation is made elsewhere, and this is confirmed in writing by the claimant, then compensation is payable for the period of time during which the claimant or plaintiff is in a position to be able to elect it.
Compensation is therefore payable for the purposes of s 93B of the Act even though as matters transpired in this particular case due to a choice made by the plaintiff compensation is and would not now be allowed in Western Australia. That however does not affect the actual right of the plaintiff to payment of compensation in Western Australia when one considers s 18 of the Act, which creates the liability for payment of compensation, pursuant to a disability occurring, subject to the Act.
Having already determined that s 175 applies to the plaintiff in this case, because compensation is payable, that does invoke the operation of Div 2 of Pt IV of the Act which prevents the plaintiff recovering damages or more particularly making a claim for damages for personal injury in the absence of an agreement with the employer or a determination by the appropriate body of a level of permanent disability.
Counsel for the plaintiff maintains that in any event it is unnecessary for the plaintiff to either agree a level of permanent disability or obtain an assessment in that regard because it is submitted the plaintiff is not a worker to whom the Western Australian Workers Compensation legislation applies. It is asserted that as the plaintiff has received workers compensation in Victoria, then by virtue of s 23 of the Western Australian legislation she is taken outside the operation of the legislation in this State. The question is whether or not s 175 of the Act applies in this case and operates in relation to s 93B of the Act or whether s 23 of the Act operates in relation to s 93B of the Act. As previously noted it is common ground that compensation has not been paid to the plaintiff in Western Australia. Counsel for the plaintiff takes a somewhat different view as to the interpretation or meaning of the phrase "or is payable in respect of the disability under this Act" in relation to the payment of compensation. It is contended on behalf of the plaintiff that s 175 of the Act does not apply in this case because s 93B(1)(b) contemplates in part a situation where "compensation has been paid" and that has not occurred in this case in Western Australia. There is a question as to the meaning of "is payable" in reference to the legislation in Western Australia. The argument on behalf of the plaintiff is that compensation is not now payable in Western Australia because the plaintiff has already received compensation in Victoria in relation to her alleged disability, so essentially that means compensation is not payable in Western Australia. I accept as a matter of fact that this is correct, but it overlooks the issue of whether compensation was ever payable in Western Australia. I do not accept the proposition on behalf of the plaintiff that it is a moot point as to whether compensation might have been payable in Western Australia to the plaintiff between 25 August 2004 when the alleged disability arose, and when the plaintiff made a claim in Victoria for compensation with respect to her alleged disability.
Earlier in these reasons there has been a finding that the plaintiff was a deemed employee of the defendant pursuant to s 175 of the Act and for that reason I accept the defendant's argument that s 175 is of relevance in this matter. This is so in my view, notwithstanding that the plaintiff has received payments of workers compensation in Victoria, as contemplated in part by s 23 of the Act. That does not operate to immediately remove the worker, being the plaintiff, from the purview of the Western Australian legislation. It simply means that having received compensation in Victoria, the plaintiff is no longer a person at this point in time, who is entitled to receive workers' compensation in Western Australia for that same "alleged" disability. It does not mean, however, that compensation was never payable in Western Australia should the plaintiff have made a claim in Western Australia and satisfied the necessary criteria. Further it does not mean in my opinion, that as a result the plaintiff is not required to meet any criteria pursuant to Workers Compensation legislation in Western Australia in relation to bringing any action for damages for personal injury in this jurisdiction. The fact that in this case the plaintiff is or was a worker who did not fail to meet certain requirements following an alleged disability arising, does not distinguish the plaintiff's situation from that of the applicant in Mokta's case, in the sense that counsel for the plaintiff urges.
I do not accept the argument on behalf of the plaintiff that essentially the provisions of s 23 of the Act are of greater moment or of more importance than the provisions of s 175of the Act, in the sense that they are more closely linked to the provisions of s 93 of the Act, relevant to determining whether or not compensation is payable to the plaintiff.
Reliance was placed by counsel for the plaintiff on the decision of the Full Court of Western Australia in Re Monger; Ex parte Velsberry Pty Ltd[2003] WASCA 9, in the sense that whilst that case is distinguishable with respect to the precise facts of this case it nonetheless concerned an examination relevant to the time at which a decision is made as to whether not compensation is paid or payable. The point was made that in this case the plaintiff is not a worker seeking to obtain payment of workers compensation in Western Australia, rather she is a person who is seeking to claim damages for personal injury at common law in Western Australia.
In submissions counsel for the plaintiff referred in particular to paragraph 27 of that case where Murray J in referring to the application of Div 2 of Pt IV of the Act noted:
"the relevant time for considering the application of the Division is the time, which I assume has not yet arrived, when damages are to be awarded at common law. As compensation had already been paid or, on any view, is payable as a result of the consent order made on 22 July 2002, the Division applies and, in effect retrospectively, the validity of the procedures employed in this case fall to be determined to the extent required by the application for certiorari."
Relying on this passage counsel for the plaintiff argues that the relevant time for considering the application of Div 2 of Pt IV of the Act is the time in this case, which has not yet arrived, being the time when damages are to be awarded at common law and not as the defendant suggests the day on which the disability arose or occurred and the liability to pay compensation arose. It is said that the case of Velsberry is authority for the proposition that the time at which one determines whether or not compensation is payable is essentially at the time when damages at common law are assessed or awarded, so the issue in this case is whether compensation is payable as of now to the plaintiff. The answer to that is in the negative by virtue of the operation of s 23 of the Act, because according to the argument on behalf of the plaintiff, from the day she received workers compensation in Victoria Div 2 of Pt IV of the Act ceased to apply. Put shortly, according to the argument for the plaintiff compensation is therefore not payable to the plaintiff.
In the context of the case of Velsberry I am inclined to accept the argument on behalf of the defendant, that the observation of Murray J upon which the plaintiff places reliance, was made in the context of s 93C of the Act relevant to when damages are to be awarded at common law, rather than interpreting or explaining the meaning of what "is payable" means in the context of s 93B(1)(b) of the Act.
I accept the argument in response to this proposition on behalf of the defendant, that the reasoning employed is flawed. Essentially, this court is being asked to re‑write the language employed in s 93B(1)(b) of the Act, to incorporate into the meaning of the phrase "is payable" the notion that this is a reference to payable now or at this point in time and that in my view cannot be correct. The language of the statute must, as a matter of common sense, be speaking from the perspective of when it is enacted in the sense that the phrase "is payable" refers to a period or time prior to the plaintiff making her claim for compensation in Victoria and receiving compensation in that jurisdiction. It does not on any construction in my opinion refer to the time of trial or the time at which damages at common law are assessed and awarded. It clearly refers to the time at which the alleged disability arises with the consequence that there is an obligation on the part of the employer to pay, and a right on the part of the worker to receive compensation for a disability, save for the operation of s 22 of the Act.

It is not a case where the statute confers a right based on choices made by a worker, to convert what is or is not payable from being payable to not being payable. The language used in the legislation does not in my view contemplate that the Court has to be satisfied that compensation is still or currently payable in respect of an alleged disability.
For the reasons expressed I accept the defendant's argument in this matter that s 175 of Act applies relevant to s 93B of the Act and I reject the submission on behalf of the plaintiff that s 23 of the Act applies in a manner which dislodges the application of s 175 of the Act to s 93B of the Act. The fact that because the plaintiff in this case has made particular choices with the result that compensation is not now payable to her in Western Australia, does not mean that subject to the Act compensation was not payable (in the sense of the real meaning of the phrase "is payable") in the Act. For that reason if the plaintiff wishes to pursue her claim for damages at common law in Western Australia she must satisfy the relevant provisions of Div 2 of Pt IV of the Act.