Gibson v Commonwealth of Australia - [2000] WASCA 290

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: GIBSON -v- COMMONWEALTH OF AUSTRALIA & ANOR [2000] WASCA 290

CORAM: MALCOLM CJ
PIDGEON J
IPP J

HEARD: 12 SEPTEMBER 2000

DELIVERED : 12 SEPTEMBER 2000

PUBLISHED : 10 OCTOBER 2000

FILE NO/S: FUL 43 of 2000

BETWEEN: PAUL ANTONIO GIBSON
Appellant
AND
COMMONWEALTH OF AUSTRALIA
First Respondent
ADRIAN VAN DER RIJT
Second Respondent

Catchwords:

Torts - Negligence - Statutes - Commonwealth as employer - Liability for negligence at common law abolished by statute unless an employee elects in writing to institute an action - An election must be made prior to commencing the action

Legislation:

Safety Rehabilitation and Compensation Act 1988 (Cth), s 44(1) s 45(1)

Result:

Appeal dismissed

Representation:

Counsel:

Appellant:     In person & Ms T Gatell Gamir (By leave of the court)
First Respondent           :     Mr L A Tsaknis
Second Respondent       :     Mr D Wallace

Solicitors:

Appellant:     In person & Ms T Gatell Gamir (By leave of the court)
First Respondent           :     Australian Government Solicitor
Second Respondent       :     Edwards Wallace

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

Commonwealth v Flaviano (1996) 40 NSWLR 199
Grogan v Commonwealth [1999] 1 Qd R 30
Grogan v WBK (1998) 9 Leg Rep SL 2

Case(s) also cited:

Gibson v Repatriation Commission (1999) 55 ALD 194
Gibson v Repatriation Commission [2000] FCA 739
Walsh v Commonwealth of Australia [1998] NSWSC 223
Commonwealth of Australia v Mewett; Commonwealth of Australia v Rock; Commonwealth of Australia v Brandon HCA; S 33 of 1996; 31 July 1997

JUDGMENT OF THE COURT: At the conclusion of argument on this appeal the Court dismissed the appeal and ordered that the appellant pay the first and second respondents' costs of the appeal to be taxed. The Court indicated that it would give its reasons for its decision at a later date. Those reasons are set out below.
The appellant has commenced proceedings against the respondents, claiming a range of relief. The basis of the claims that he makes is not readily discernible from the pleadings filed by him but it does seem that he seeks to found his claims on allegations of negligence on the part of both respondents. The appellant has had two attempts at filing statements of claim that comply with the Rules of the Supreme Court 1971. Both these attempts were unsuccessful as both statements of claim were struck out by the learned Master. This appeal stemmed from the order made striking out the last statement of claim filed by the appellant.
The appellant was employed by the Royal Australian Air Force and, in effect, contends that the intensive training that he was obliged to undergo caused his pre‑existing but asymptomatic congenital condition of multiple osteochondromatosis to become symptomatic. In the course of experiencing the symptoms in question, the appellant was treated by the second respondent. It is these matters that lie at the heart of the appellant's allegations against the respondents.
On 27 May 1999 the appellant's original statement of claim was struck out by the learned Master at the instance of the respondents. The learned Master gave the appellant 42 days in which to file and serve a minute of substituted statement of claim. That time was extended and on 28 July 1999 the appellant filed the substituted statement of claim.
On 12 November 1999 the respondents applied for an order striking out the substituted statement of claim. This application was upheld. The learned Master struck out the substituted statement of claim and ordered that the claims against the first and second respondents be dismissed. On 30 November 1999 the appellant filed a notice of appeal against the decision of the learned Master. The learned Registrar referred the notice of appeal to White J for directions pursuant to O 63 r 2(4). His Honour struck out the notice of appeal and ordered that there be liberty to the appellant to file a substituted notice of appeal within 21 days of the date of the order. White J ordered, however, that the substituted notice of appeal was to be directed only to the learned Master's order in relation to the appellant's claim against the second respondent and not to his order in relation to the claim against the first respondent. His Honour was of the opinion that there was an irremediable defect in the statement of claim that could not be cured on the facts that existed at the date the statement of claim was issued. And it is to that matter that we now turn.
The appellant's claim against the first respondent is governed by the provisions of the Safety Rehabilitation and Compensation Act 1988 (Cth). Section 44(1) of that Act provides:
"Subject to section 45, an action or other proceeding for damages does not lie against the Commonwealth, a Commonwealth authority, a licensed corporation or an employee in respect of:
(a)an injury sustained by an employee in the course of his or her employment, being an injury in respect of which the Commonwealth or Commonwealth authority or licensed corporation would, but for this subsection, be liable (whether vicariously or otherwise) for damages; or
(b)the loss of, or damage to, property used by an employee resulting from such an injury;
whether that injury, loss or damage occurred before or after the commencement of this section."
Section 45(1) of the Act provides:
"Where:
(a)compensation is payable under section 24, 25 or 27 in respect of an injury to an employee; and
(b)the Commonwealth, a Commonwealth authority, a licensed corporation or another employee would, but for subsection 44(1), be liable for damages for any non‑economic loss suffered by the employee as a result of the injury;
the employee may, at any time before an amount of compensation is paid to the employee under section 24, 25 or 27 in respect of that injury, elect in writing to institute an action or proceeding against the Commonwealth, the Commonwealth authority, the licensed corporation or other employee for damages for that non‑economic loss."
White J explained that by s 45, where compensation is payable by the first respondent under the stipulated sections and, were it not for the provisions of s 44, the first respondent would be liable for damages for non‑economic loss suffered by the employee "the employee may, at any time before an amount of compensation is paid to him or her, elect in writing to institute an action or proceeding against the Commonwealth … for damages for such non‑economic loss. Such an election is irrevocable".
The substituted statement of claim filed by the appellant made no allegation that the appellant had made an election (whether in writing or at all) as required by s 45(1). Indeed, on the evidence contained in the Appeal Book, it is apparent that, in fact, the appellant has not made such an election. As no amount of compensation has been paid to him as contemplated by s 45(1), it is still open to the appellant to make such an election. What is plain, however, is that he is precluded by s 45(1) from instituting an action against the first respondent for damages for non‑economic loss until he has made that election: Commonwealth v Flaviano (1996) 40 NSWLR 199; Grogan v Commonwealth [1999] 1 Qd R 30. Moreover, the mere institution of proceedings by a plaintiff is not an election as required under s 45(1): Commonwealth of Australia v Flaviano at 203 ‑ 204 per Sheller JA.
White J accordingly held that the omission on the part of the appellant to make an election in writing (as required by s 45(1)) to institute proceedings against the first respondent for damages for non‑economic loss, and to allege in the statement of claim that such election was made, led inevitably to the conclusion the learned Master was entirely correct in ordering that the statement of claim against the first respondent be struck out.
The learned Judge was plainly correct in the decision he arrived at, as was the learned Master. Unless and until an employee, in the position of the appellant elects in writing to institute an action against the first respondent for damages for any non‑economic loss suffered by him or her, that employee is not entitled to bring any such action. If the employee does make such an election, that employee will forfeit the claim for statutory compensation against the first respondent that might otherwise exist under the Safety Rehabilitation and Compensation Act. This is the important decision that underlies the election.
The appellant was not represented by counsel in this appeal. By leave of the Court his mother presented the argument on his behalf. She was given leave on the strength of the appellant's statement that by reason of the pain he was suffering from his injuries he had taken strong medication and his concentration suffered. In fact, both the appellant and his mother intermittently addressed argument to the court.
Both of them seemed to have difficulty in understanding firstly, that an election in writing had to be made before the appellant could commence a common law action for damages for non-economic loss against the first respondent and secondly, how that election was to be made. At times, each said that a certain claim form completed by the appellant in which he claimed benefits under the relevant statute was an election to claim common law damages for non‑economic loss. The claim form, however, concerned a claim for statutory compensation. It was not a claim for common law damages for non‑economic loss and was not an election as required by s 45(1). Additionally, both the appellant and his mother argued that a letter dated 13 December 1998 written by the appellant's mother to the first respondent constituted such an election. The letter referred to a request on the appellant's behalf to the Commonwealth to "pay compensation" and concluded:
"I support the view that you should be aware of the situation, in order to determine a decision regarding my son's claim and maybe (sic) find a possible solution that would avoid lengthy and complex process under the Jurisdiction of the legal Courts (sic).
Awaiting to hear from you as soon as possible".
This too, was plainly not an election to claim damages for non‑economic loss. The letter concerned the appellant's claim for statutory compensation and sought information about that claim. It did not relate in any way to a claim for common law non-economic loss.
The appellant and his mother complained that because he had made a claim for statutory compensation under the Act, and that claim was refused by the first respondent, he had "no other choice but to seek compensation through the civil courts …". They did not appear to understand that, although the first respondent had denied liability to the appellant, it was still open to the appellant to take steps at law in an attempt to compel it to pay statutory compensation under the Act. They also did not appear to understand that there was a difference between a claim for such statutory compensation and a claim for damages for non-economic loss at common law. In any event, as we repeat herein, and as the Court on several occasions in the course of argument informed the appellant and his mother (and as White J and the learned Master advised them), the Act requires that, before an employee brings an action for common law damages for non‑economic loss against the first respondent, an election in writing to make such a claim must be communicated by the employee to the first respondent. See in this regard Commonwealth of Australia v Flaviano and Grogan v Commonwealth of Australia at 34 and 35. In the application for special leave to appeal to the High Court from the decision of the Court of Appeal of Queensland (reported in Grogan v WBK (1998) 9 Leg Rep SL 2) McHugh J said:
"The words 'subsequently instituted by the employee against the Commonwealth' in s 45 (2) indicate that the election must be made prior to commencing the action or proceeding. It is a short step to conclude that the election so made must be communicated. … In our view there is no reason to doubt the correctness of the decision of the Court of Appeal."
A denial by the first respondent of liability on its part to pay statutory compensation does not constitute an election by the appellant of the kind required by s 45(1). It follows inevitably that as the statement of claim made no reference to the making of such an election, it was necessarily defective and insofar as it related to the appellant's claim against the second respondent, it was rightly struck out. White J observed that the grounds of appeal, in the appellant's notice of appeal, did not address the omission in the statement of claim to allege the making of the necessary election. His Honour pointed out that, in any event, the grounds of appeal are very difficult to understand. He suggested that the appellant may wish to take legal advice. We agree with the learned Judge in all three respects.
As regards the appellant's claim against the second respondent, the cause of action based on negligence is virtually incomprehensible. The statement of claim itself is in narrative form and contains some 50 pages of material that is largely either evidential or argumentative. The document contravenes, in a fundamental way the law and practice relating to the pleading of a cause of action. The prayer for relief contains claims for orders which, the court has no power to make or which, are unintelligible. For example the appellant claims:
"(a)…
(b)… that [the second respondent] be struck out of the medical practitioners (sic) Association.
(c)…
(d)Compensation under Safety Rehabilitation and Compensation Act 1988 or Compensation (Commonwealth Government Employees) Act 1971.
(e)The Statement of Principles of 1999 concerning multiple osteochondromatosis (as amended).
(f)Statement of Principles concerning osteoarthrosis of 1998 (as amended)".
White J concluded, in regard to that part of the statement of claim that applied to the second respondent:
"In my opinion, the appellant has sought, in the defective statement of claim, to plead a cause of action against the second respondent. The learned Master has found that he did not succeed in that endeavour. It is possible that the Full Court may allow the appellant another opportunity to plead an effective cause of action against the second respondent."
It was for that reason that the learned Judge ordered that there be liberty to the appellant to file a substituted notice of appeal within 21 days but directed only to the learned Master's order in relation to the appellant's claim against the second respondent and not to his order in relation to the claim against the first respondent.
Nothing was said to us by the appellant or his mother which suggested that the learned Judge made the orders, that he did, in error. Indeed, they had difficulty in expressing any coherent complaint against the orders made by his Honour. In our opinion, White J was entirely correct in making the orders that he did.