Duca v Aherns Holdings Pty Ltd
[2004] WADC 85
•10 MAY 2004
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: DUCA -v- AHERNS HOLDINGS PTY LTD [2004] WADC 85
CORAM: CHANEY DCJ
HEARD: 29 APRIL 2004
DELIVERED : 10 MAY 2004
FILE NO/S: CIVO 32 of 2004
BETWEEN: ETA DUCA
Plaintiff
AND
AHERNS HOLDINGS PTY LTD
Defendant
Catchwords:
Workers' compensation - Common law claim for damages - Leave to commence proceedings - No application prior to repeal the former provision - preservation of right to seek leave - Assessment by Medical Assessment Panel - Issue estoppel - Potential for further review
Legislation:
Workers Compensation and Rehabilitation Act 1981
Workers Compensation and Rehabilitation Amendment Act 1999
Interpretation Act 1984 (WA)
Result:
Leave to commence proceedings granted
Representation:
Counsel:
Plaintiff: Mr I T Blatchford
Defendant: Mr M W Odes QC
Solicitors:
Plaintiff: S C Nigam & Co
Defendant: Greenland Brooksby
Case(s) referred to in judgment(s):
Dossett v TKJ Nominees Pty Ltd (2003) 202 ALR 428
Esber v Commonwealth (1992) 174 CLR 430
Hanna‑Pauley v David Jones Ltd [2004] WADC 69
Henderson v KCUT Pty Ltd & Anor [2004] WADC 13
Sampson v Industrial Progress Corp Pty Ltd, unreported; FCt SCt of WA; Library No 970058; 21 February 1997
Toolan v Metropolitan (Perth) Passenger Transport Trust (2001) 25 WAR 1
Case(s) also cited:
Kuligowski v Metrobus (2002) 26 WAR 137
Lend Lease Employer Systems Pty Ltd v Lyndon, unreported; FCt SCt of WA; Library No 980088; 27 February 1988
Mayne v Mayne Nickless Ltd, unreported; FCt SCt of WA; Library No 960223; 26 April 1996
McNair v Press Offshore Limited (1997) 17 WAR 19
Waddington v Silver Chain Nursing Association (1998) 20 WAR 269
CHANEY DCJ: This application was commenced by originating summons filed on 2 March 2004. By that summons, the plaintiff seeks leave to commence an action against the defendant for damages for personal injury sustained by her in an accident which occurred on or about 18 May 1998 in the course of her employment with the defendant.
The leave that is sought is leave pursuant to s 93D of the Workers Compensation and Rehabilitation Act 1981, as it stood prior to the amendment to that act by the Workers Compensation and Rehabilitation Amendment Act 1999 (the "Amendment Act").
Section 93D prior to its amendment provided that damages could only be awarded to a worker if the disability subject of a claim resulted in the death of the worker or is a "serious disability". A serious disability is one which results in a degree of disability in excess of 30 per cent as assessed under the Act, or in a future pecuniary loss of an amount that is at least equal to the prescribed amount. The plaintiff bases her application on the latter qualification.
The Amendment Act repealed s 93D and replaced its provisions with a different regime for the commencement of actions for damages for personal injury by an employee against his or her employer. It was no longer necessary to obtain the leave of this Court to commence such an action, but other hurdles had to be cleared before damages could be awarded to an injured worker. The Amendment Act provided a transitional provision in s 32(7). That subsection provided :
"(7)The amended provisions do not affect the awarding of damages in proceedings —
(a)Commenced before the assent day; or
(b)For the commencement of which the District Court gave leave under the former provisions before the assent day,
and the former provisions continue to apply in relation to those proceedings."
In Dossett v TKJ Nominees Pty Ltd (2003) 202 ALR 428 the High Court held that s 32(7) of the Amendment Act did not affect an implied repeal of either s 37(1) or s 37(2) of the Interpretation Act, with the effect that Mr Dossett, who had instituted proceedings for a grant of leave pursuant to s 93D of the Act prior to the Amendment Act coming into force, but whose application had not been dealt with, was entitled to have the application heard and determined notwithstanding the amendments. It is because of the High Court's decision in Dossett that the plaintiff brings this application. The distinction, however, is that, in this case, the plaintiff had not commenced an application for leave prior to 5 October 1999. The defendant opposes the grant of leave on two bases. The first is that Dossett is distinguishable because it concerned a case where an application for leave was on foot at the time of the assent to the Amendment Act. The second is that an issue estoppel is said to arise by reason of a determination of the Medical Assessment Panel under the Act which leads to the conclusion that the plaintiff could not satisfy the requirement that she has suffered future pecuniary loss at least equal to the prescribed amount.
The plaintiff was employed by the defendant between 6 December 1996 and November 1998. She worked as a sales assistant. On 18 May 1998, in the course of her employment, the plaintiff claims to have been injured whilst lifting and removing a cardboard box containing hand bags from the top of a stack of boxes over two metres high. She says that the event took place within a confined space, and in the course of lifting she lost her balance, fell backwards and was injured. She subsequently undertook light duties until November 1998 but thereafter has not worked except on short work trials. She is currently in receipt of payments of workers compensation for what would appear to be her full weekly wage.
In December 1999, after the Amendment Act had come into force, the plaintiff issued what is known as a Form 22 referral of question of degree of disability. That is an application to the Director of the Conciliation and Review Directorate established under the Act. That application followed the prescribed procedure, and was ultimately referred to the Medical Assessment Panel for determination. At about the same time, the defendant had commenced an application within the Conciliation and Review Directorate seeking a review of weekly payments of compensation to the plaintiff pursuant to s 62 of the Act. That application was also referred to the Medical Assessment Panel.
The Medical Assessment Panel assessed the percentage of disability in accordance with Sch 2 of the Act at "five percent disability of the thoraco‑lumbar spine in accordance with item 36a of the second schedule of the Workers Compensation and Rehabilitation Act 1981." It determined that she was partially incapacitated for work as a result of a psychiatric condition which it said was temporary. In relation to the claim for discontinuance of weekly payments, the question was put to the Medical Assessment Panel:
"Does the worker have a physical capacity for work on a full time or part time basis as a sales assistant? If the worker is fit for part time employment, for how many hours per week is she fit?".
The Medical Assessment Panel responded:
"Part time to a capacity of 20 hours per week initially with a possibility of increasing to full time hours with a graduated return to work programme."
As a result of those findings, on 21 August 2001, the Review Officer handling the matter determined that the relevant level of the worker's disability is less than 16 per cent being the level of "significant disability" below which damages at common law cannot be awarded to an injured worker under the regime introduced by the Amendment Act.
In January 2002, the plaintiff filed a further form 22 seeking a determination that she had suffered whole body disability of not less than 30 per cent. Correspondence followed between the Directorate and the solicitors for each of the parties in relation to that application. As a result of that correspondence, the plaintiff's solicitors requested that the matter be referred to the Medical Assessment Panel again for reconsideration pursuant to s 145F of the Act. That section enables the Medical Assessment Panel to reconsider a determination where there is new evidence that could not have been submitted to the panel, and would be likely to affect the determination of the question if it were to be reconsidered. Further correspondence followed which resulted in the Review Officer ultimately concluding that the "new evidence" would not be likely to affect the determination, and thus he declined to refer the matter to the Medical Assessment Panel for further reconsideration. That conclusion was communicated to the parties on 7 July 2003.
The decision in Dossett v TKJ Nominees Pty Ltd was delivered in December 2003. The originating summons was issued by the plaintiff on 3 March 2004.
Application of the Act before its amendment
The threshold question for determination in this application is whether it is open to the plaintiff to avail herself of the provisions of s 93D as it stood prior to the amendment in 1999, by reason of her injury having occurred prior to the assent date. The decision in Dossett established clearly that, where an application for leave had been instituted prior to the assent date, an injured worker had an entitlement to have that application dealt with. The entitlement arises by virtue of the provisions of s 37(1) and (2) of the Interpretation Act 1984 (WA). Those sections relevantly provide:
"37General Savings on Appeal
(1)Where a written law repeals an enactment, the repeal does not, unless the contrary intention appears –
…
(c)Affect any right, interest, title, power or privilege created, acquired, accrued, established or exercisable or any status or capacity existing prior to the repeal;
(d)Affect any duty, obligation, liability or burden of proof imposed, created, or incurred prior to the repeal;
…
(f)Affect any investigation, legal proceeding or remedy in respect of any such right, interest, title, power, privilege, status, capacity, duty, obligation, liability, burden of proof, penalty or forfeiture,
and any such investigation, legal proceeding or remedy may be instituted, continued, or enforced, and any such penalty or forfeiture may be imposed and enforced as if the repealing written law had not been passed or made.
(2)The inclusion in the repealing provisions of any enactment of any express saving with respect to the repeals effected thereby shall not be taken to prejudice the operation of this section with respect to the effect of those repeals."
In their joint judgment in Dossett, their Honours Gummow, Hayne and Haydon JJ noted that, in argument, the respondent properly made a concession that by reason of the suffering by the appellant of his injury on 2 December 1996 and the pendency of his leave application to the District Court at the critical date of 5 October 1999, the situation of the appellant answered the terms of one or more of pars (b), (c) and (f) of s 37(1) of the Interpretation Act. The court then rejected the appellants argument that the 1999 amendments had not "repealed", in the sense required by the Interpretation Act provision, the provisions of the old s 93D. It also rejected the argument that "a contrary intention" appeared in s 32(7) of the Amendment Act. The judges concluded that s 37(1) of the Interpretation Act must be read with the statement in s 37(2) to the effect that an express saving such as that in s 32(7) of the Amendment Act is not to be taken to prejudice any additional operation of the Interpretation Act. Their Honours then examined the question as to whether the Amendment Act effectively provided for an implied repeal of s 37(2) of the Interpretation Act. They concluded that it did not. McHugh J (at [11] ) and Kirby J (at [83] and [84] ) both agreed.
In argument in this case, counsel for the plaintiff accepted that the conditional right to claim damages which the plaintiff had in relation to her accident on 18 May 1998, as at October 1999 came within the description of preserved rights or interests referred to in s 37(1)(c) of the Interpretation Act. He contended, however, that a "contrary intention" appeared by virtue of the provisions of s 32(7) of the Amendment Act.
The contrary conclusion has been reached in this Court in two matters. In Henderson v KCUT Pty Ltd& Anor [2004] WADC 13, Macknay DCJ concluded that the court's decision in Dossett made no distinction between the situation where there were pending proceedings, and the situation as it would have been had no application been made. His Honour concluded that the necessary effect of the finding of the High Court is that the Interpretation Act s 37(1) has application in all cases that fall within it ( [30‑33] ). In Hanna‑Pauley v David Jones Ltd [2004] WADC 69, Williams DCJ reached the same conclusion. Although it was submitted to me that Williams DCJ "simply followed the Henderson decision, it appears from the published reasons in the Hanna-Pauley matter that Williams DCJ, while noting the decision of MacKay DCJ, reached his conclusion on his own analysis of the effect of Dossett.
It was submitted to me that the decisions in Henderson and Hanna‑Pauley are erroneous, and should not be followed. Much reliance was placed upon the passage from the Full Court's decision in Toolan v Metropolitan (Perth) Passenger Transport Trust (2001) 25 WAR 1, where Malcolm CJ said (at [17] ):
"In my view, there is no inconsistency between the provisions of s 32(7) of the Amendment Act and s 37 of the Interpretation Act. The result is, where no relevant proceedings are pending as at 5 October 1999, then, irrespective of the date of the accident or the date upon which the injury or disability occurred, the Amendment Act applies, unless one or other of the saving provisions in s 37(2) applies. In my view, in a case where one or other of the saving provisions applies, the intention of the legislation on its proper construction is that pending proceedings are subject to the statutory regime as it was prior to the amendment."
That passage was quoted in the joint judgment in Dossett with apparent approval. The passage does appear to give fairly clear support to the defendant's position. It might be noted, however, that it was quoted in Dossett in the context of observations as to the existence of inconsistency between the provisions of s 32(7) of the 1999 Act and s 37 of the Interpretation Act. Neither in Dossett, nor in Toolan, was the court confronted with the position which exists in this case, namely where an accident pre-dated the amendment, but no proceedings have been brought to seek leave under s 93D prior to 5 October 1999.
In the joint judgment in Dossett, their Honours, after mentioning the decision in Toolan, went on to say (at [32] ) :
"In this court, the appellant draws attention to the provisions of s 37(2) of the Interpretation Act. This states:
'The inclusion in the repealing provisions of an enactment of any express saving with respect to the repeals effected thereby shall not be taken to prejudice the operation of the section with respect to the effect of those repeals.'
The appellant submits that it follows from the application of the specific provision in s 37(2) of the Interpretation Act that the limited savings provisions in s 32(7) of the 1999 Act do not exhaustively deal with the position. He contends that there is left untouched whatever advantage he otherwise obtains by the operation s 37(1) of the Interpretation Act. That submission should be accepted."
Counsel for the defendant contends that the "advantage he otherwise obtains by the operation of s 37(1) of the Interpretation Act" referred to by their Honours is confined to the advantage of having commenced proceedings prior to the assent date. Like Macknay and Williams JJ, I do not readily see the basis for making that distinction. Once it is determined that s 32(7) of the 1999 Act leaves open the pursuit of rights or interests which come within s 37(1) of the Interpretation Act, the basis for reading down the categories of rights or interests enumerated in s 37(1) only to those associated with proceedings which have already been commenced prior to the assent date is not apparent.
The plaintiff's counsel submits that, where no proceedings have been commenced, a contrary intention appears from s 32(7) of the Amendment Act. He asserts that, otherwise, the transitional provisions of the Amendment Act would have no work to do. While I accept the force of that submission, the conclusion of the High Court is that those provisions to not exhaustively deal with the matter, and I see no reason to draw the line on the application of the Interpretation Act in the way suggested by the plaintiff.
It would be inappropriate and undesirable for me to depart from a decision of two other judges of this Court on precisely the same point, unless I considered that they were plainly wrong. That would be especially so where the effect of departing from their decision may be to permanently deprive the plaintiff of a right of action for damages because of the impending expiration of the limitation period. The discussion of an appeal court's power to antedate its order found in the reasons of Wheeler J in Toolan suggest that, if an appeal were successful, it may not ultimately be nugatory, but the point is by no means clear.
The principle reasons in Toolan were delivered by Parker J. All other members of the court agreed with his Honour's reasons, although Malcolm CJ and Wheeler J made some additional remarks. Parker J (at 19 ‑ 20) discussed the application of s 37(1) to conditional rights. He accepted the proposition recognised by the majority in Esber v Commonwealth (1992) 174 CLR 430 at 440 that "the right was nonetheless a right because it was conditional". I agree with Judges Macknay and Williams that the rationale of Dossett can be applied equally to a right to damages subject to the condition of applying for and obtaining leave as it can to a right that is subject to the condition of obtaining leave on an application already made. It is a right preserved by the provisions of the Interpretation Act.
Does the plaintiff meet the requirements of s 93D (2)(b)?
In her affidavit in support of her application, the plaintiff deposes to the fact that she has not worked since November 1998 except on short work trials arranged by rehabilitation providers. She asserts that she continues to be totally incapacitated from returning to any form of employment, and that she is presently in receipt of payments of workers compensation of $525 gross per week. She deposes to an intention to continue with her employment until the age of 65 years, that being a further 17 years working life.
In a medical report dated 2 September 2002, Dr Andrew Harper expresses the view that at present Mrs Duca is incapacitated for gainful employment. He says that in future she may regain limited work capacity for part time restricted duties for sales assistant work of a very limited nature. He expresses the view that her employability is very low.
On the basis of a total incapacity for work for 17 years, calculations submitted by the plaintiff's counsel suggest a total future loss of $242,047. The plaintiff also submits that, in addition to future loss of earning capacity, the plaintiff is likely to endure future medical expenses, and expenses for gratuitous services. As to the last of those heads of damage, no evidence is provided to support a conclusion that any amount should be included in that regard. On the basis of the plaintiff's evidence, her ability to meet the threshold of s 93D (2)(b) would be adequately established for the purposes of this application.
In answer to the plaintiff's submissions on future pecuniary loss, the defendant points to the finding of the Medical Assessment Panel referred to above, namely that the plaintiff has part time capacity of 20 hours per week initially with a possibility of increasing to full time hours with a graduated return to work programme. That determination was made on 1 August 2001.
The defendant relies upon s 144E of the Workers Compensation and Rehabilitation Act 1981. That subsection provides:
(5)Unless rescinded under s 145F, the determination, or if the determination is varied under that section the determination as varied, is final and binding on the worker and his employer, and on any court or tribunal hearing a matter in which any such determination is relevant, and the written determination given under subs (3) is, the absence of evidence that the determination was so rescinded or varied, conclusive evidence as to the matters determined.
The defendant submit that the determination by the Medical Assessment Panel results in a conclusion that the plaintiff has a capacity to work at least 50 per cent of a normal working week, and that there is a possibility that that capacity may have increased, or may in the future increase, to full time hours. The defendant submits that this Court is bound to accept that as the position in light of the findings of the Medical Assessment Panel. That, it is submitted, would remain the case until such time as the Medical Assessment Panel undertakes a review and varies its determination.
On the defendant's calculations, assuming the capacity to work 50 per cent of each day exists, the plaintiff has a future pecuniary loss of $121,000. The relevant prescribed amount was agreed by the parties as $135,531. While the finding of the Medical Assessment Panel suggests a possibility of improvement from the capacity to work only 20 hours per week, the vagueness of that finding is not capable of raising any issue estoppel or acquiring of any particular conclusion as to the plaintiff's present working capacity. All that the Medical Assessment Panel's comment as to that possibility suggests is that it did not consider the plaintiff's condition necessarily permanent and not susceptible to change.
The issue before the Medical Assessment Panel, and the issue in this application, are not the same. The Medical Assessment Panel was asked to determine, in August 2001, the capacity for work of the plaintiff. The issue before me is whether, at the hearing of the application, there is a real, and not remote chance that the plaintiff may recover damages equal to or in excess of the prescribed amount. Material going to that issue has been placed before me which was not available at the time of the hearing before the Medical Assessment Panel.
Even if it is accepted that the capacity as assessed in August 2001 remains, in the absence of a review by the Medical Assessment Panel, the incapacity as at today's date, that position is not necessarily permanent. The plaintiff could, on the basis of changed condition, apply to have that finding reviewed. The evidence of Professor Harper referred to above suggests that the possibility of review leading to a conclusion of greater incapacity exists. It is interesting to note that the plaintiff continues to receive full payments of weekly compensation, notwithstanding the finding of the Medical Assessment Panel which would have suggested only partial payments should be received. Counsel was not able to explain how the current payments continued to be made on a basis which assumed total incapacity.
It is not necessary, in an application of this nature, to reach any definite findings as to the plaintiff's future pecuniary loss. In my view it is reasonably open on the evidence to conclude that the plaintiff's claim for future pecuniary loss will exceed the prescribed amount (see Sampson v Industrial Progress Corp Pty Ltd, unreported; FCt SCt of WA; Library No 970058; 21 February 1997 at 5).
In the circumstances, I have reached the view that leave should be granted to the plaintiff to bring proceedings against the second defendant seeking damages for personal injuries sustained by her in an accident which occurred on 18 May, 1998 in the course of her employment with the defendant.
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