Gibbs v Haoma Mining NL [No 3]
[2015] WADC 57
•15 MAY 2015
GIBBS -v- HAOMA MINING NL [No 3] [2015] WADC 57
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WADC 57 | |
| Case No: | CIV:1348/2007 | 11 MARCH 2015 | |
| Coram: | SCHOOMBEE DCJ | 15/05/15 | |
| PERTH | |||
| 20 | Judgment Part: | 1 of 1 | |
| Result: | Application to review the sum previously allocated to general damages allowed Sum for general damages increased to $70,000 | ||
| PDF Version |
| Parties: | BARBARA JEAN GIBBS HAOMA MINING NL INSURANCE COMMISSION OF WESTERN AUSTRALIA |
Catchwords: | Tort Personal injury Application by plaintiff for judge to review calculation of general damages Amount allowed for general damages published in reasons, but no order made Power of District Court to alter calculation of general damages Whether s 23 of Motor Vehicle (Third Party Insurance) Act 1943 provides for retrospective operation of s 3G of the same Act Whether restrictions on general damages imposed by that Act are not applicable where defendant was the plaintiff's employer and its liability arose other than by reason of its negligent driving of the motor vehicle |
Legislation: | Motor Vehicle (Third Party Insurance) Act 1943 (WA) s 3G, s 23 |
Case References: | CE Heath Underwriting & Insurance (Australia) Pty Ltd v Edwards Dunlop & Co Ltd (1993) 176 CLR 535 Certain Lloyd's Underwriters v Cross (2012) 248 CLR 378 Commonwealth v Orr (1981) 58 FLR 219 Dickinson v Motor Vehicle Insurance Trust (1987) 74 ALR 197 Gibbs v Haoma Mining NL [2012] WADC 127 Maxwell v Murphy (1957) 96 CLR 261 Smith v NSW Bar Association (1992) 176 CLR 256 Wentworth v Woollahra Municipal Council [No 2] (1982) 149 CLR 672 Western Metals Zinc NL v Wesfarmers Transport Ltd [2003] WASCA 152 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
HAOMA MINING NL
Defendant
INSURANCE COMMISSION OF WESTERN AUSTRALIA
Third Party
Catchwords:
Tort - Personal injury - Application by plaintiff for judge to review calculation of general damages - Amount allowed for general damages published in reasons, but no order made - Power of District Court to alter calculation of general damages
Whether s 23 of Motor Vehicle (Third Party Insurance) Act 1943 provides for retrospective operation of s 3G of the same Act - Whether restrictions on general damages imposed by that Act are not applicable where defendant was the plaintiff's employer and its liability arose other than by reason of its negligent driving of the motor vehicle
Legislation:
Motor Vehicle (Third Party Insurance) Act 1943 (WA) s 3G, s 23
Result:
Application to review the sum previously allocated to general damages allowed
Sum for general damages increased to $70,000
Representation:
Counsel:
Plaintiff : Ms R Sorgiovanni
Defendant : Mr J D Catlin
Third Party : Mr T Mason
Solicitors:
Plaintiff : Sorgiovanni Legal
Defendant : Mr Yeatman, in-house counsel for Haoma
Third Party : Jackson McDonald
Case(s) referred to in judgment(s):
CE Heath Underwriting & Insurance (Australia) Pty Ltd v Edwards Dunlop & Co Ltd (1993) 176 CLR 535
Certain Lloyd's Underwriters v Cross (2012) 248 CLR 378
Commonwealth v Orr (1981) 58 FLR 219
Dickinson v Motor Vehicle Insurance Trust (1987) 74 ALR 197
Gibbs v Haoma Mining NL [2012] WADC 127
Maxwell v Murphy (1957) 96 CLR 261
Smith v NSW Bar Association (1992) 176 CLR 256
Wentworth v Woollahra Municipal Council [No 2] (1982) 149 CLR 672
Western Metals Zinc NL v Wesfarmers Transport Ltd [2003] WASCA 152
- SCHOOMBEE DCJ:
Application for court to review amount allowed for general damages
1 Ms Barbara Gibbs, the plaintiff, has made an application for the court to review the sum previously allowed for general damages in respect of a claim by Ms Gibbs against Haoma Mining NL (Haoma), the defendant. The damages allowed have been calculated, but not yet awarded.
2 Haoma was Ms Gibbs' employer and the court held in reasons, published as Gibbs v Haoma Mining NL [2012] WADC 127, that Haoma was negligent in that it breached its non-delegable duty to provide safe equipment to Ms Gibbs. Ms Gibbs drove a motor vehicle in the course of her employment which was unsafe, with the result that the wheel disengaged while Ms Gibbs was driving the vehicle. The court held that Ms Gibbs had also been negligent and allocated 25% contributory negligence to her.
3 Haoma had joined the Insurance Commission of Western Australia as a third party claiming that it was entitled to indemnity by the Insurance Commission pursuant to its compulsory motor vehicle insurance policy. The court held that the Insurance Commission was not obliged to indemnify Haoma, because Haoma had breached a warranty contained in the policy.
4 By agreement between the parties the court made the necessary findings and calculated the appropriate damages, but did not make an award of those damages or any orders in respect of Ms Gibbs' claim against Haoma, because the court upheld Haoma's contention that Ms Gibbs was obliged to obtain a determination of her disability of not less than 16% as required by s 93E(3) of the Workers' Compensation and Injury Management Act 1981 (WCA). The parties agreed that Ms Gibbs was entitled to pursue such a determination and in the event of her being successful, the court should then make the award of damages.
5 Ms Gibbs has now obtained a determination that her degree of disability was 41%. Accordingly, Ms Gibbs is entitled to common law damages, unrestrained by the provisions of the WCA.
6 During the trial all parties assumed that the Motor Vehicle (Third Party Insurance) Act 1943 (MVA) was also applicable to Ms Gibbs' claim. Mr Nugawela, who was counsel for Ms Gibbs at the trial, submitted during opening submissions that the MVA applied to Ms Gibbs' claim because her injury was caused by the driving of a motor vehicle.
7 Haoma also relied on the fact that the MVA applied, because it sought an indemnity pursuant to its policy issued under that Act against the Insurance Commission. Counsel for the Insurance Commission never raised any issue that the MVA might not be applicable to Ms Gibbs' claim.
8 All parties proceeded on the assumption that the MVA applied to Ms Gibbs' claim. This was presumably on the basis of the following provisions of the MVA.
9 Section 4(1) of the MVA requires the owner of any motor vehicle on a road to have in force a contract of insurance under which the owner is insured in accordance with the MVA against any liability which he or she may incur in respect of the death of or bodily injury to any person directly caused by, or by the driving of, the motor vehicle.
10 Section 6 of the MVA provides that a policy of insurance must be issued by the Insurance Commission which insures the owner of the motor vehicle 'in respect of all liability for negligence' which may be incurred by the owner in respect of the death of or bodily injury to any person directly caused by, or by the driving, of the insured vehicle.
11 Section 7 of the MVA allows a plaintiff to recover by action from the Insurance Commission the amount of any judgment which is unsatisfied and was obtained by the plaintiff against an insured owner of a motor vehicle where the plaintiff's bodily injury was caused by the owner's negligence and also directly caused by, or by the driving of, the motor vehicle.
12 Section 16 defines, under the heading 'jurisdiction' the words 'action or proceedings' as follows:
action or proceedings means action or proceedings making a claim for damages, in respect of the death of or bodily injury to a person directly caused by, or by the driving of, a motor vehicle, against the owner or driver of the vehicle or against the Commission.
13 It was common cause between the parties that Ms Gibbs suffered an injury directly caused by the driving of a motor vehicle and made a claim against Haoma, which was the owner of the vehicle and insured under the provisions of the MVA.
14 The main issue relevant to the WCA and the MVA during the trial was whether Ms Gibbs required a determination that her disability was at least 16% prior to being able to proceed with the claim against Haoma. In line with the assumption made by all parties, the court calculated the damages to which Ms Gibbs was entitled on the basis that the MVA was applicable. The restrictions imposed by the MVA on the extent of damages recoverable by a plaintiff who is injured by, or by the driving of, a motor vehicle were in her case only applicable to general damages. The court calculated the general damages pursuant to the provisions of s 3C of the MVA and allowed Ms Gibbs 7.5% of a most extreme case, which amounted to $26,250. From this amount the deductible of $17,500 then prescribed by s 3C(5) of the MVA had to be subtracted which left $8,750 for general damages. Amount A prescribed under s 3C has now been increased to $390,000 with the result that 7.5% of that amount would now be $29,250. From this amount the currently prescribed deductible of $19,500 would have to be subtracted, resulting in an amount of $9,750.
15 Ms Sorgiovanni, who is now counsel for Ms Gibbs, submitted in the present of the application that the calculation of the general damages should not have been restricted by the provisions of the MVA, because having obtained a determination of a 41% disability, Ms Gibbs is entitled to pursue a common law claim unrestricted by any provisions of the WCA or the MVA.
16 Ms Gibbs' main argument was that since the proclamation of s 3G of the MVA in 2006 the MVA no longer applied to a claim against an employer, unless the injury was caused by the negligent driving of the employer, and that s 3G had retrospective application because of the provisions of s 23 of the MVA.
17 Section 23 was not raised by any party during the trial. In fact it was assumed by all parties that s 3G did not have retrospective effect. The court dealt with s 3G of the MVA at [35] – [39] and [63] of the reasons which have already been handed down and came to the conclusion that it was not necessary to determine whether it had retrospective effect.
Whether s 3G of the MVA has retrospective effect and whether this extends to the policy period in which the accident occurred
18 Section 3G of the MVA was inserted by s 5 of the Motor Vehicle (Third Party Insurance) Amendment Act 2006 and came into operation on 1 July 2006. It provides as follows:
(1) This section has effect if the death of or bodily injury to a person is directly caused by, or by the driving of, a motor vehicle in circumstances giving rise to the owner of the motor vehicle being liable to pay compensation under the Workers' Compensation and Injury Management Act 1981 in respect of that death or bodily injury or which would have given rise to liability of that kind but for section 22 of that Act.
(2) If this section has effect, neither this Act nor a contract of insurance under this Act apply in respect of liability for negligence which may be incurred by the owner in respect of the death or bodily injury other than liability for the negligent driving of the motor vehicle.
(3) In subsection (2) -
owner includes any person for whose negligence the owner is legally responsible.
20 Accordingly, it was not necessary to decide whether s 3G had retrospective application. On first impression, the section itself did not appear to have retrospective effect, as it dealt with a matter of substantive law. Neither party raised s 23 of the MVA or the possibility that that Act had no application whatsoever to Ms Gibbs' claim or the third party proceedings.
21 Counsel for Ms Gibbs now relies on s 23 of the MVA which provides as follows:
(1) When any Act comes into operation which alters the insurance required to be given by a policy of insurance complying with this Act or the rights or liabilities of the Commission under any such policy, every policy of insurance which has been issued for the purpose of providing insurance required by this Act and is in force when the said Act comes into operation or at any time thereafter shall be deemed to be altered in such a manner as to comply with the requirements of this Act as from time to time amended.
(2) Where, as a consequence of an alteration to which subsection (1) applies, any cause of action arising prior to the coming into operation of the Act by which that alteration was effected would not have been a cause of action had it arisen after the coming into operation of that Act, no proceedings shall be commenced or, subject to subsection (3), determined in respect of that cause of action.
(3) Subsection (2) does not apply to or in relation to any cause of action in respect of which a court has given judgment, whether or not that judgment is subject to appeal.
22 The effect of s 23(1) is that an automatic alteration takes place of any policy of insurance in force at the time that the Amendment Act comes into operation. Counsel for Ms Gibbs submitted that this gave s 3G full retrospective effect, in other words, it applied to any claim even if this was governed by an earlier policy issued under the MVA for the same vehicle as long as that policy had been renewed and was in force as a renewed policy at the time that s 3G came into operation.
23 It was common cause between the parties that s 23(1) applies to Ms Gibbs' claim, because s 3G which came into operation on 1 July 2006 had the effect of altering the insurance required to be provided by a policy of insurance under the MVA. The effect of s 3G was that an employer who had been sued by an employee in respect of an injury caused by, or by the driving of, a motor vehicle was no longer entitled to rely on the cover of a policy issued to him as owner of the motor vehicle under the MVA, if the employer was liable to pay compensation under the WCA and if the employer's liability to the plaintiff did not arise from the negligent driving of the motor vehicle.
24 In a similar manner, an employee who suffered an injury by, or by the driving of, a motor vehicle where the employer's liability did not arise from negligent driving, but from the failure to provide a safe system of work or a safe vehicle, was no longer entitled to recover the amount of the judgment from the Insurance Commission in the event of the judgment remaining unsatisfied.
25 Section 23(2) and s 23(3) are also applicable. They provide that, if as a consequence of any alteration made to the policy of insurance, any cause of action which arose prior to the coming into operation of the Amendment Act would not have been a cause of action had it arisen after the coming into operation of that Act, no proceedings are to be commenced or determined in respect of that cause of action, unless a judgment has already been given.
26 This means that if s 3G, the Amendment Act, had been in effect when Ms Gibbs' claim arose, neither Haoma nor Ms Gibbs would have had any entitlement to rely on the policy of insurance issued under the MVA, and that Act would therefore not have had any application to Ms Gibbs' claim. No proceedings by Ms Gibbs relying on the MVA could have been commenced or determined.
27 The main issue between the parties is whether the automatic alteration of the policy provided for in s 23(1) only applies to a policy of insurance which was current when s 3G came into operation on 1 July 2006 or at any time thereafter, or whether it also applies to a policy of insurance which was in place when the accident occurred and then renewed for a period which included 1 July 2006. Section 23(1) provides that the automatic amendment applies to 'every policy of insurance which has been issued for the purpose of providing insurance required by this Act and is in force when the said Act comes into operation or at any time thereafter'.
28 Haoma had a policy of insurance in place in respect of the motor vehicle provided by it to Ms Gibbs since before the date of the accident and this policy had been renewed annually, including for the period in 2003 during which the accident occurred and for the period in 2006 when the amendment act came into operation.
29 It is not in dispute that Ms Gibbs' claim is governed by the renewed annual policy of insurance for 2003 as the accident occurred on 27 September 2003. The main issue is whether 'the policy of insurance' was 'in force' when the Amendment Act came into operation on 1 July 2006.
30 Counsel for Ms Gibbs submitted that there was only one motor vehicle insurance policy for this vehicle and that it was in force when s 3G came into operation in July 2006, albeit in a renewed form. On this basis, she submitted, the automatic alteration applied to that policy, including to the 2003 policy period, with the result that the policy was no longer governed by the MVA.
31 Counsel for the Insurance Commission, who had been given the opportunity to make submissions on this issue, submitted that the application of the automatic alteration was limited to any current policy in force at the time when s 3G came into operation or to any later renewed policy, and that the policy applicable to the 2003 insurance year should be regarded as a separate policy.
32 Counsel for the Insurance Commission relied on s 24 of the MVA which provides as follows:
Where in any provision of this Act reference is made to the issue of a policy of insurance complying with this Act such reference shall extend to and include the issue of a renewal of such policy of insurance.
33 However, all that s 24 stipulates is that where reference is made to the issue of a policy of insurance under the MVA that includes the issue of a renewal of such a policy. It does not say that each renewed policy should be regarded as a new or separate policy.
34 The effect of s 24 is simply that s 23(1) has to be read as providing that any automatic alteration applies to 'every policy of insurance or renewed policy of insurance which has been issued for the purpose of providing insurance required by this Act and is in force when this said Act comes into operation'. This still begs the question whether each renewed policy is a separate policy and what was intended by the words 'in force'.
35 Counsel for Haoma argued that it was the renewed and separate policy of insurance which was in force on 1 July 2006, and not the earlier policy of insurance which was applicable at the time of the accident. Hence only the policy renewed for the 2006 insurance period was subject to the automatic amendment.
36 Counsel for Haoma also relied on the second reading speech applicable to the bill which first introduced the equivalent section to s 24. Section 19E of the Motor Vehicle (Third Party Insurance)Act1943 was inserted by the Motor Vehicle (Third Party Insurance)Act AmendmentAct1944 and subsequently repealed by the Motor Vehicle (Third Party Insurance) Act Amendment Act 1948. Section 19E was in the same terms as the current s 24.
37 During the second reading of the bill on 16 November 1944 the Honourable Minister for Works said the following, which appeared to be applicable to the proposed s 19E:
The Act lays it down that an insurance policy must be issued by the company and obtained annually by every owner of a motor vehicle. Legally this means that each year the owner of a motor vehicle would have to apply for a new policy and the insurance office concerned would have to issue a new policy. The general practice in the insurance world, as members are well aware, is not to issue a new policy each year where premiums are payable annually, but to issue a renewal certificate on the original policy. To bring the provisions of the Act into line with the generally accepted insurance practice the Bill provides that any renewal of an insurance policy is to be regarded, in fact, as the issuance of a new policy for the purposes of the Act.
38 Counsel for the Insurance Commission relied particularly on the word 'new' used by the Honourable Minister. However, all that the Honourable Minister explained is that the proposed s 19E would allow for a renewal of a policy to be regarded as another policy of insurance issued for the next insurance year. His use of the word 'new' does not signify that a renewed policy is a separate policy.
39 In fact, if regard is to be had to the second reading speech, the passage immediately preceding the one relied upon by counsel for Haoma seems to deal with the proposed s 19D which was in very similar terms to the current s 23(1). Section 19D also made any Amendment Act applicable to 'every policy of insurance which has been issued for the purpose of providing insurance required by this Act and is in force'. The Honourable Minister said the following with regard to this proposed section:
The Bill further provides that any alteration to the Act will automatically effect a similar alteration to insurance policies operating under the Act.
40 The reference to 'operating under the Act' indicates that the Honourable Minister had in mind all policies, for all periods of insurance, which were still operative at the time when an Amendment Act came into operation.
41 Counsel for Ms Gibbs pointed out that s 19D of the Motor Vehicle (Third Party Insurance)Act1943 did not contain the equivalent to s 23(2) or s 23(3). She submitted that the fact that s 23(3) specifically provides that the retrospective operation of s 23(2) does not apply to any cause of action in respect of which a court has given judgment, implies that the retrospective effect applies not only to the policy of insurance or renewed policy of insurance which is current at the time that the amending Act comes into operation, but also to an earlier policy which had been renewed for the period in which the amended Act came into operation. Ms Gibbs submitted that if the retrospective effect was limited to the policy current at the time of the coming into operation of the Amendment Act, s 23(3) would have very little application, because even if the amendment act had come into operation on the last day of the year to which the policy applied, it was very unlikely that any judgment in respect of proceedings arising under the MVA would have been handed down within the preceding year.
42 Section 23(2) and s 23(3) were inserted by the Motor Vehicle (Third Party Insurance) Amendment Act 1987. That Amendment Act also introduced a substantial amendment to the then existing s 10(1) which was similar to the current s 6(1) and spelled out the extent of cover which was provided for under a motor vehicle policy of insurance. The pre-existing section had provided for cover where the death or bodily injury of a plaintiff was 'caused by or arises out of the use of' a motor vehicle. After the decision of the High Court in Dickinson v Motor Vehicle Insurance Trust(1987) 74 ALR 197, s 10(1) was amended so that the death or injury had to be 'directly caused by, or by the driving of' a motor vehicle.
43 In Dickinson the High Court held that a motor vehicle policy provided cover for the injuries received by a little girl who had waited in a car for her father while her brother had inadvertently set alight the interior of the car by playing with matches. The High Court held that the injuries arose out of the use of a motor vehicle.
44 The second reading speeches in respect of the Bill which introduced both these amendments indicates that there was considerable concern about the fact that the change to the cover provided by motor vehicle insurance policies would apply retrospectively because of s 23(1), and the discussions centred on whether s 23(2) and s 23(3) would provide adequate protection for plaintiffs who had already commenced an action relying on the earlier extent of cover provided. In explaining that the retrospectivity should not cause any practical problems, the Honourable Treasurer and the Honourable Attorney-General explained that there were no existing proceedings instituted by plaintiffs which were likely to be affected by the retrospective amendments to the extent of cover. There was no mention made during the second reading speeches in the legislative assembly or in the legislative council of any suggestion that the retrospective application would only apply to policies which were then current.
45 Before regard is had to external material such as second reading speeches the principles of statutory construction require that the meaning of a provision be established by having regard to the text itself, its context and the purpose of the provision: Certain Lloyd's Underwriters v Cross (2012) 248 CLR 378 [23] – [26].
46 In CE Heath Underwriting & Insurance (Australia) Pty Ltd v Edwards Dunlop & Co Ltd(1993) 176 CLR 535, 545 – 546 Dawson J, Toohey J and McHugh J held that it was well established that where a policy of insurance was renewable only by mutual consent, and not of right, the renewal resulted in a fresh contract rather than an extension of an existing contract. However, their Honours also stated that the fact that a fresh contract came into existence upon each renewal did not necessarily mean that the term 'policy period' as used in the policy was not capable of meaning the aggregate of the periods during which each insurance contract was in force. The question was ultimately one of construction. Their Honours noted that the term 'policy' was popularly used to refer to the terms and conditions of insurance which continued over a number of years, notwithstanding that the renewal of the policy had resulted in a fresh contract from year to year.
47 The policy under discussion in thatcase was a blanket fidelity policy and not a motor vehicle insurance policy. A motor vehicle insurance policy falls into a different category as it is a compulsory policy issued on application for a vehicle licence. As held in CE Heath Underwriting & Insurance,it is a question of construction as to what the term 'policy of insurance', as it appears in s 23 means.
48 The text of s 23(1) does not make any differentiation between policies issued for particular periods of insurance and makes no reference to whether they were current or not. It simply refers to 'every policy of insurance which has been issued for the purpose of providing insurance required by this Act'. Section 24 makes it clear that the words 'policy of insurance' include a renewed policy of insurance.
49 It is also apparent from s 21(1) that the legislature has simply referred to a 'policy of insurance' as compromising a motor vehicle insurance policy renewed from time to time. That section provides that if an existing policy of insurance expires by effluxion of time and a new policy is issued within 15 days of the expiry date of the pre-existing policy, the latter policy is extended until the date when the 'new policy' was issued. It is only in the context of a further policy being issued after a pre-existing one has expired, that the legislature refers to a 'new policy'.
50 In my view there is no scope for adding the implied word 'current' to the text of s 23(1) where it refers to 'every policy of insurance which has been issued'.
51 The real issue is what was intended by the words 'in force'. According to the Shorter Oxford English Dictionary 'in force' means, in a legal context, 'operative, binding or valid'. The policy issued for the 2003 insurance period during which the accident occurred is still 'operative, binding or valid' in the sense that Haoma and Ms Gibbs are entitled to rely on the cover provided by that policy.
52 This means that the policy of insurance issued to Haoma, including for the 2003 insurance period, is still operative and was in force when the Amendment Act came into operation. Accordingly, s 23(1) has full retrospective effect and makes s 3G applicable to the policy of insurance issued to Haoma.
53 That interpretation of s 23(1) is confirmed by the second reading speech of the Bill preceding the Amendment Act which introduced s 3G. On 18 May 2005, the Honourable Minister for Government Enterprises stated that 'it was never the intent of this Act (the MVA) to have the third party insurance fund provide compensation for what clearly falls within the responsibility of workers' compensation-employers' indemnity insurance' (underlining added).
54 There is also an argument that s 3G is merely a declaratory provision, and as such should be given retrospective effect. It could be said to be a declaratory provision, as it merely explains that claims made against an employer which fall within the ambit of the WCA and which do not involve the negligent driving of an employer, were never intended to be covered by the MVA.
55 On the other hand, s 3G clearly affects the rights and obligations of plaintiffs and their employers. The effect of s 3G is to the detriment of plaintiffs in that they will have to obtain the necessary determination of their disability as provided for in pt IV div 2 of the WCA before making a claim against their employer, and, at the same time, is to the benefit of such plaintiffs, because, if they obtain a determination of a disability of 30% or more, their damages are not restricted by the provisions of the MVA. Where an act does affect the legal rights or obligations of parties, there is a reluctance to regard it as a declaratory act:Commonwealth v Orr (1981) 58 FLR 219, 227.
56 A similar principle is applied where the retrospectivity of a statutory provision is considered. Where the retrospective operation would affect existing rights or liabilities, the provision has to state with reasonable certainty that retrospectivity was intended: Maxwell v Murphy (1957) 96 CLR 261, 267.
57 However, s 23(1) does state clearly that any amendment brought about by an amendment act is deemed to apply to any insurance policy which was issued under the MVA and 'in force' when the amendment came into operation. A policy pursuant to which Haoma and Ms Gibbs are still entitled to obtain cover is a policy which is 'in force'.
58 This means that the policy applicable to Ms Gibbs' claim has been automatically amended to allow for the provisions of s 3G. Accordingly, neither Haoma nor Ms Gibbs has any entitlement to cover under the policy issued under the MVA and the restrictions on damages imposed by the MVA are not applicable to Ms Gibbs' claim.
Whether irrespective of s 3G damages should be assessed in common law, unrestricted by the provisions of the MVA
59 Counsel for Ms Gibbs submitted that even if the court should hold that s 23(1) did not have full retrospective effect, Ms Gibbs should in any event be entitled to have her damages assessed in common law without any of the restrictions imposed by the MVA. Counsel for Ms Gibbs argued that once a plaintiff had obtained a determination of a disability of 30% or more, she was entitled to have her damages assessed in common law on an unrestricted basis.
60 Strictly speaking it is no longer necessary to deal with this argument, but I will do so for the sake of completeness.
61 Counsel for Ms Gibbs relied on the provisions of pt IV div 2 of the WCA. Section 93B states that div 2 applies to the awarding of damages against a worker's employer independently of the WCA. Damages awarded 'independently of the WCA' presumably include common law damages.
62 Section 93B(3) provides for an exemption when the division is not applicable, but the Court of Appeal held in Western Metals Zinc NL that the exemption did not apply to 'hybrid damages' which it said were the damages subject to the restrictions under the MVA. Accordingly, 'damages independently of the WCA' would also include these 'hybrid damages'.
63 Counsel for Ms Gibbs relied on s 93C of the WCA which provides that if div 2 applies, a court is not to award damages to a person contrary to the division. The problem is that div 2 contains numerous provisions constraining an award of damages, unless a determination of a disability of 30% or more has been obtained, but does not deal with how damages should be awarded if a determination of a disability of 30% or more has been achieved. This seems to have been left to principles of common law and, according to the decision in Western Metals Zinc NL,the provisions of the MVA. The Court of Appeal in that case seems to have contemplated that a common law claim against an employer would be subject to the restriction on damages provided for in the MVA. The court said the following in that regard [26]:
If common law damages are payable under the Compensation Act (the WCA), the limitation in ss 3A-3E of the Insurance Act (the MVA) will in appropriate circumstances apply to limit or restrict those damages.
64 This observation may be regarded as an obiter remark, as the Court of Appeal was not concerned with determining common law damages and in any event, the employer in that case was not the owner or driver of a motor vehicle.
65 Nevertheless, the observation indicates that the Court of Appeal was of the view that the restrictions on damages under the MVA might still apply even if a plaintiff had obtained a determination of a disability of not less than 30% and was entitled to bring a common law claim.
66 Accordingly, s 93C of the WCA does not assist Mr Gibbs as it does not provide that common law damages should be awarded in an unrestricted manner once the plaintiff has obtained a determination of a 30% disability.
67 Counsel for Ms Gibbs also relied on s 93F(3) which provides as follows:
No entitlement to damages is created by subsection (1) and that subsection is subject to any other law that prevents or limits the awarding of damages.
68 Section 93F(1) provides as follows:
93F. Degree of disability less than 30%, constraints on awards
(1) Unless an agreement or determination that the degree of disability of the worker is not less than 30% is recorded for the purposes of section 93E -
(a) the amount of damages to be awarded is to be a proportion, determined according to the severity of the injury, of the maximum amount that may be awarded; and
(b) the maximum amount of damages that may be awarded is Amount A, but the maximum amount may be awarded only in a most extreme case of a disability of less than 30% in degree.
70 Counsel for Ms Gibbs submitted to the court that it did not make sense that a plaintiff should be affected by the restrictions imposed by the WCA, as well as the restrictions under the MVA. She argued that once a plaintiff had obtained a determination of a disability of at least 30%, he or she should be entitled to unrestricted damages in common law. I agree that this would be a sensible approach.
71 The problem is, however, that this approach is not brought out by the provisions of the WCA. In fact, div 1 of pt IV which deals, according to its heading, with the general provisions applicable to civil proceedings which are brought in addition to or independent of the WCA, contains s 85. This section provides as follows:
85. Motor vehicle cases not affected by this Part
Nothing in this Part affects the operation of sections 29 and 29A of the Motor Vehicle (Third Party Insurance) Act 1943, and this Part shall be read subject to those sections of that Act.
72 Section 29 and s 29A of the MVA deal with the requirement that a plaintiff may not maintain an action for damages against an insured employer or the Insurance Commission unless the plaintiff or a person on his behalf has given notice to the Insurance Commission of the occurrence of the accident. Section 85 of the WCA essentially provides that the requirement for such a notice under the MVA still applies. This means that the legislature contemplated that the MVA would still have some application to a claim made by a plaintiff against his or her employer, if the injury was caused by, or by the driving of, a motor vehicle.
73 Section 3G of the MVA has introduced a proper delineation between a claim made against an employer which does not involve negligent driving and should be dealt with pursuant to the WCA, and a claim against an employer which arises out of negligent driving and is to be dealt with pursuant to the provisions of the MVA. However, if s 3G does not have retrospective effect, neither the provisions of the WCA nor of the MVA provide that once a plaintiff has obtained a determination of a disability of at least 30%, he or she is entitled to common law damages unrestricted by the MVA.
74 Counsel for Ms Gibbs also relied on s 3C(7) of the MVA which provides as follows:
No entitlement to damages is created by subsection (2), (3), (5) or (6) and those subsections are subject to any law (other than Division 2 of Part IV of the Workers’ Compensation and Injury Management Act 1981) that prevents or limits the awarding of damages.
75 Sections 3C(2), (3), (5) and (6) deal with damages for non-pecuniary loss and the manner in which they are to be restricted. Section 3C(7) makes it clear that the requirements of div 2 of pt IV of the WCA do not apply. This means that a plaintiff claiming damages against an employer under the MVA does not need to obtain a determination of a disability of at least 30%, but it does not provide for the reverse. In other words, it does not say that where a plaintiff makes a claim against an employer and has obtained a determination of at least 30%, the restrictions in s 3C of the MVA do not apply.
76 Counsel for Ms Gibbs also relied on s 3B of the MVA which provides that if s 3C and s 3D apply, a court is not to award damages to a person contrary to those sections. She argued that this section meant that an assessment of damages under the MVA excluded the application of any of the provisions of the WCA. Apart from the provision in s 3C(7) that div 2 of pt IV of the WCA does not apply, s 3C and s 3D merely state that damages have to be restricted as set out in those sections. Those sections do not say that they do not apply to a common law claim against an employer.
77 Accordingly, unless s 3G has full retrospective effect and also applies to the policy issued to Haoma for the 2003 insurance period, the position appears to be that both the restrictions of the WCA and those of the MVA apply to Ms Gibbs' claim.
78 As Ms Gibbs has obtained a determination of a disability of 41%, it is not necessary to decide what the position might be if a plaintiff made a claim against an employer and only obtained a determination of a disability of more than 16%, but less than 30%. In such a case s 93F of the WCA restricts damages to a specific maximum amount. The question then arises whether that restriction applies as well as the restriction on damages set out in the MVA. Fortunately, this issue is unlikely to arise anymore at this stage, as s 23(1) has been in operation since 1 July 2006 and at least has retrospective effect with regard to policies that were issued for a period covering that date and subsequent policy periods.
Re-assessment of general damages to which Ms Gibbs is entitled
79 As I have found that s 3G has full retrospective effect and therefore applies to the policy issued to Haoma for the period in which the accident occurred, the restrictions on damages under the MVA have no application. This means that Ms Gibbs is entitled to have her common law claim for general damages assessed in a manner unrestricted by the provisions of s 3C of the MVA.
80 Counsel for Haoma conceded that the amount of $70,000 claimed by Ms Gibbs was appropriate for general damages assessed under the common law. I have reviewed the pain and suffering and loss of amenities that Ms Gibbs has had to deal with arising from her physical injuries as well as her psychiatric problems. These matters have been dealt with in the earlier reasons handed down. It seems appropriate that Ms Gibbs should be entitled to a sum of $70,000 in respect of general damages, if these are assessed without any restrictions.
Court's discretion to vary a judgment prior to the order being perfected
81 A court has a discretion to set aside or vary a judgment before any order is made in that regard and even after this, if the order has not yet been perfected: Smith v NSW Bar Association (1992) 176 CLR 256, 265. The discretion should be exercised having regard to the public interest and maintaining the finality of litigation: Wentworth v Woollahra Municipal Council [No 2] (1982) 149 CLR 672, 684.
82 In this case the final award of damages was delayed by the requirement that Ms Gibbs had to obtain a determination that her disability was not less than 30%. No material prejudice has been caused to Haoma or to the Insurance Commission by the court reviewing the amount to be awarded for general damages. Neither party raised any prejudice in that regard.
83 Any finding that the MVA is not applicable to Ms Gibbs' claim does not affect the position of the Insurance Commission. The court held in its previous reasons published as Gibbs v Haoma Mining NL [2012] WADC 127, [292] - [314] that the Insurance Commission is in any event not liable because Haoma breached the warranty in the policy of insurance.
84 The finding that the MVA is not applicable to Ms Gibbs' claim by implication also means that Haoma had no right to claim indemnity from the Insurance Commission. As far as the judgment by this court is concerned, this has no practical effect with regard to Haoma's position because the court has already rejected Haoma's claim against the Insurance Commission because of the breach of warranty. No prejudice resulting from this potential finding was raised by counsel for Haoma during argument on the application of s 3G to Haoma's policy of insurance.
85 Haoma has appealed the decision to dismiss the third party claim. If Haoma wishes, it can obviously also appeal the finding that s 3G of the MVA has retrospective effect.
86 Both Haoma and the Insurance Commission were given the opportunity to provide written and oral submissions with regard to the issues raised by Ms Gibbs in this application and, more particularly, the issue of the retrospective application of s 3G.
Recalculation of damages
87 By reason of the fact that the final judgment in this case is to be handed down more than a year and a half after the reasons for finding in favour of Ms Gibbs in relation to the claim against Haoma were published, the calculation of the damages, in addition to general damages, needs to be revisited.
88 The damages awarded were recalculated by counsel for Ms Gibbs on the basis that a judgment would be handed down on 11 March 2015, the last hearing date in relation to the present application. Counsel for Haoma agreed that these calculations were correct on the basis that they adopted the method of calculation of each head of damages utilised in the prior reasons published by this court and were merely adjusted to a later date of judgment. Counsel for Haoma also agreed that, although the calculations had been done up to 11 March 2015, it would make little difference if the judgment was handed down within a month or two thereafter.
89 This means that Ms Gibbs is now entitled to the following amounts of damages:
General damages $ 70,000
Past loss of earning capacity $244,201
Interest on past loss of earning capacity $ 83,077
Future loss of earning capacity $116,272
Past loss of superannuation $ 20,852
Interest on past loss of superannuation $ 7,094
Future loss of superannuation $ 9,454
Past medical and travel expenses $ 13,174
Interest on past medical and travel expenses $ 4,482
Future medical and travel expenses $ 29,288
Sub-total $597,894
Minus 25% contributory negligence $149,474
Total $448,420
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