Gable v Steel Cap Recruitment Pty Ltd

[2016] WADC 151

GABLE -v- STEEL CAP RECRUITMENT PTY LTD [2016] WADC 151

Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2016] WADC 151
Case No:	CIV:1864/2016	Heard:	12 OCTOBER 2016
Coram:	DEPUTY REGISTRAR HEWITT	Delivered:	27/10/16
Location:	PERTH
No of pages:	4	Judgment Part:	1 of 1
Result:	Action struck out
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Parties:	DAMON GENE GABLE STEEL CAP RECRUITMENT PTY LTD
Catchwords:	Practice and procedure Summary judgment application Claim by worker against employer for work related injury Section 93K Workers' Compensation and Injury Management Act 1981
Legislation:	Workers' Compensation and Injury Management Act 1981 s 93K
Case References:	St John of God Health Care Inc v Austin [2014] WASCA 11 Woodside Energy Ltd v Zaghloul [2015] FCAFC 135

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION : PERTH CITATION : GABLE -v- STEEL CAP RECRUITMENT PTY LTD [2016] WADC 151 CORAM : DEPUTY REGISTRAR HEWITT HEARD : 12 OCTOBER 2016 DELIVERED : 27 OCTOBER 2016 FILE NO/S : CIV 1864 of 2016 BETWEEN : DAMON GENE GABLE

Plaintiff

AND

STEEL CAP RECRUITMENT PTY LTD
Defendant

Catchwords:

Practice and procedure - Summary judgment application - Claim by worker against employer for work related injury - Section 93K Workers' Compensation and Injury Management Act 1981

Legislation:

Workers' Compensation and Injury Management Act 1981 s 93K

Result:

Action struck out

Representation:

Counsel:

Plaintiff : In person
Defendant : Mr C Treasure

Solicitors:

Plaintiff : Not applicable
Defendant : Jarman McKenna

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

St John of God Health Care Inc v Austin [2014] WASCA 11
Woodside Energy Ltd v Zaghloul [2015] FCAFC 135

1 DEPUTY REGISTRAR HEWITT: In this action the plaintiff claims for damages for injury which he received during the course of his employment with the defendant. As a consequence of that relationship the provisions of the Workers' Compensation and Injury Management Act 1981 apply. In particular the provisions of s 93K are relevant and subsection 4 of that section is in the following terms:

(4) Damages in respect of an injury can only be awarded if –

(a) the worker elects, in the manner prescribed in the regulations, to retain the right to seek the damages; and
(b) the Director registers the election in accordance with the regulations; and

(c) court proceedings seeking the damages are commenced after the Director gives the worker written notice that the Director has registered the election; and

(d) the court is satisfied that the worker's degree of permanent whole of person impairment is at least 15%.

2 It will all be seen from the provisions which I have quoted that necessary preconditions to an injured worker obtaining damages from his employer by action in this court are that he elects to retain the right to seek damages, that election is registered in accordance with the regulations and the court proceedings seeking the damages are commenced after the director gives notice that he has registered the election. In the present circumstances it is common ground that:

(1) the plaintiff is a worker within the meaning of the Act and the defendant was at the relevant time his employer.

(2) the worker has made no election to retain the right to seek common law damages and as a consequence there has been no registration of that election nor written notice that the election has been registered.

3 Satisfaction of these requirements is a precondition to the court being empowered to grant to the plaintiff the remedy which he seeks namely compensation in respect of an injury.

4 Other provisions within the Act set out the time within which an election can be made but in the circumstances which prevail here it would appear that time has not begun to run against this plaintiff who retains the opportunity to make and register an election and proceed with a common law claim for damages. That opportunity does not salvage the position from the perspective of the plaintiff because in the circumstances which prevail in this case the court is precluded (in the present action) from awarding him any damages in respect of the injury which he sustained.

5 There is a suggestion within the statement of claim that the plaintiff is entitled to damages for other breaches by the defendant namely the failure to provide an incident report and various other documentation which the plaintiff contends the defendant was obliged to produce.

6 Insofar as those issues are raised in the statement of claim there are extremely difficult to understand and in my view devoid of any merit. The plaintiff's claim is simply that he was injured in fulfilment of his work duty and that injury was brought about by the negligence of his employer.

7 Section 93K has received the attention of various courts including the Western Australian Court of Appeal in St John of God Health Care Inc v Austin [2014] WASCA 11 and by the Federal Court in Woodside Energy Ltd v Zaghloul [2015] FCAFC 135. However the wording of the section has been amended in a manner, which in my opinion, puts it beyond doubt that the court is not empowered to award damages in respect of an injury to a worker unless the proceedings are commenced after the director gives the worker written notice of the registration of his election.

8 In the circumstances I see no prospect that the present action can result in an award of damages in favour of this plaintiff. Saying that I do not intend to suggest that there may not be exist the necessary elements to constitute a cause of action in negligence or that is not open to him to satisfy the necessary legislative requirements. My decision simply is that unless and until the provisions of 93K (4)(a)(b)(c) are satisfied the court is not empowered to award damages to the plaintiff for his injury, that being in my opinion the only potentially viable cause of action which he pursues in this action.

9 As a result of that conclusion my decision is that the action commenced by the plaintiff should be struck out and that is the order which I propose to make. I choose not to dismiss the action since that would stand as an obstacle to the plaintiff commencing a further action if he is able to satisfy the requirements of s 93K(a), s 93K(b) and s 93K(c).