Hitchcock Holdings Pty Ltd v Ramsden - [2000] WASCA 15

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: HITCHCOCK HOLDINGS PTY LTD -v- RAMSDEN [2000] WASCA 15

CORAM: PIDGEON J
MURRAY J
McKECHNIE J

HEARD: 20 OCTOBER 1999

DELIVERED : 4 FEBRUARY 2000

FILE NO/S: FUL 33 of 1999

BETWEEN: HITCHCOCK HOLDINGS PTY LTD
Appellant (Defendant)
AND
MICHAEL ALLAN RAMSDEN
Respondent (Plaintiff)

Catchwords:

Negligence - Practice and procedure - Common law action for negligence commenced - Later enactment of restrictive provisions of the Workers' Compensation and Rehabilitation Act 1981 (WA) - Plaintiff's claim was for a notifiable cause of action under transitional provisions of Amendment Act 1993 - Requirement for a certificate of registration of the cause of action - Effect of statutory scheme generally - Effect of scheme in relation to plaintiff's application for leave to amend statement of claim

Legislation:

Workers' Compensation and Rehabilitation Act 1981 (WA)

Workers Compensation and Rehabilitation Amendment Act 1993 (WA) s 4, s 5, s 6, s 8, s 11, s 13 and s 17

Result:

Appeal dismissed

Representation:

Counsel:

Appellant (Defendant) : Mr M W Odes QC & Mr P V Lansell
Respondent (Plaintiff) : Mr T H Offer

Solicitors:

Appellant (Defendant) : Jackson McDonald
Respondent (Plaintiff) : Leonard Cohen & Co

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

Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234
Dye v Griffin Coal Mining Co Pty Ltd (1998) 19 WAR 431
Purton v Qantas Airways Limited, unreported; DCt of WA (Barlow DCJ); Library No 4264; 2 December 1994

Case(s) also cited:

Adams v The Federation of WA Police & Citizens Youth Clubs (1994) 10 SR (WA) 320
Bayly v Greenbay Holdings, unreported; DCt of WA; Library No 4647; 11 October 1995
Caltex Oil v The Dredge Willemstad (1976) 136 CLR 529
Dye v The Griffin Coal Mining Co Pty Ltd, unreported; DCt of WA (Sadleir J); Library No 5050; 4 September 1996
Fertal Holdings v Kinna (1995) 13 SR (WA) 238
Household Financial Services Ltd v Braybrook & Ors (1991) 2 VR 577

PIDGEON J: I have had the advantage of reading in draft the reasons to be delivered by Murray J.
I agree with them and for the reason he gives I would dismiss the appeal.
MURRAY J: According to the pleadings in this matter, in February 1990 the respondent commenced to work for the appellant as a diver. He sued in the District Court for damages for injuries allegedly caused to his right hip in the course of that employment, which injuries he says have caused him very substantial loss and damage. He wishes to rely upon causes of action for negligence, breach of statutory duty to provide him with a safe working environment under the Occupational Health Safety and Welfare Act and breach of an implied term of his contract of employment. The pleading by way of statement of claim by which he wishes to raise those causes of action together, or effectively in the alternative, is of a conventional kind. In truth it is clear he bases his claim in negligence.
His case is that he first developed pain, in his right hip in about October 1990 but he kept working and continued to perform his normal duties although thereafter he experienced increasing pain in the hip, until there was an episode on about 30 May 1991 at work doing maintenance on the appellant's boat when he suffered a major increase in the pain, since when he asserts he has been disabled from work as a diver and has been fit only for employment which involves light physical activity. He describes those events as the initial injury, the continuing injury and the final injury, rather inappropriately in my opinion.
The respondent's case, formulated in that way, is taken from a proposed substituted statement of claim which he wishes to have leave to file and serve to replace an earlier statement of claim as amplified by further and better particulars of claim, documents which were drawn by different solicitors and perhaps expressed his claim rather less elegantly than he would now have it pleaded. When he sought leave to substitute the statement of claim a Registrar of the District Court dismissed his application.
He appealed to a Judge of that Court and the appeal was heard by Kennedy DCJ. Her Honour allowed the appeal and granted leave to substitute a statement of claim. Along the way her Honour suggested amendments to certain paragraphs of the proposed statement of claim to make clear the causal relationship between the final condition of disability and the hip injury. At the same time her Honour necessarily dismissed an

application made by the appellant much earlier, to strike out various paragraphs of the original statement of claim upon grounds which I need not now enumerate but which essentially raised matters relevant to the decision of the learned Registrar on the respondent's application and relevant to the decision of the appeal by Kennedy DCJ. It is from that decision that this appeal is brought by leave granted by the Full Court, differently constituted, on 16 March 1999.

I should note in passing that the appellant filed a defence to the respondent's claim as originally formulated in the statement of claim. The pleading is brief. There is a blanket denial of every allegation made in the statement of claim and a pleading that, if the respondent did suffer any injury in the course of his employment, that injury has resolved and any disability now suffered by the appellant is entirely caused by a pre‑existing condition. Then the document raises essentially the issues upon which the appellant now relies to assert that the action is statute barred and may not now be pursued.
The action was commenced on 30 July 1993 by a writ which contained a general indorsement of claim in the following terms:
"The Plaintiff's claim is for damages against the Defendant for personal injuries arising out of an accident on or about 31st May 1991 by gradual onset caused by the negligence and/or breach of statutory duty and/or breach of contract and/or breach of the Occupiers' Liability Act 1985 (WA) of the Defendant, its employees, servants or agents.
AND the Plaintiff claims damages and costs."
Nothing turns on the fact that the indorsement of claim refers to the date 31 May 1991 whereas the subsequent statement of claim refers to the date 30 May 1991. In my opinion, the statement of claim as originally formulated falls well within that indorsement. The claim is pursued for what is asserted to be a work‑caused progressive disability of the hip finally culminating in the event of 30 May 1991 which incapacitated the respondent, so it is alleged, from further employment and which resulted in a range of other damage and loss for which he sues. It will be noticed that the causes of action relied upon in the statement of claim are not so numerous as those to which the indorsement refers. The original statement of claim refers only to negligence and/or breach of an implied term in the contract of employment. The proposed substituted statement of claim describes the progressive nature of the injury and the cause of damage in substantially the same way as the original statement of claim. It is somewhat wider in the causes of action relied upon because it adds a specific claim for breach of statutory duty. Neither form of the statement of claim relies upon any breach of the Occupiers' Liability Act.
For the appellant it is argued that both the original statement of claim and that proposed to be substituted are wider than the indorsement because it is asserted the indorsement only refers to an accident on a specific day in May 1991 whereas the other pleadings refer to an injury which was first noticed in about October 1990 and which thereafter progressed and worsened until the final disabling incident on the nominated date in May 1991. That argument did not find favour with either the learned Deputy Registrar of the District Court or with Kennedy DCJ. In my respectful opinion also, it is without merit.
The indorsement on the writ refers briefly to injuries culminating in those produced by the incident in May 1991 but which had been developing "by gradual onset" prior to that date. The pleading and the proposed substituted pleading by way of statement of claim simply make clear what occurred in that way. In Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234 at 245 Wilson J said:
"The concept of a 'cause of action' would seem to be clear. It is simply the fact or combination of facts which gives rise to a right to sue. In an action for negligence, it consists of the wrongful act or omission and the consequent damage."
In that sense the cause of action relied upon in the indorsement on the writ and the pleadings is precisely the same. The facts giving rise to the right to sue are the negligent omission, or the breach of contract or statutory duty to the same effect, to provide a safe system of work, whereby over a period of time the respondent alleges he received gradually worsening injury until, upon the final disabling event on 30 May 1991, he was incapacitated for work and was caused other damage. In my opinion, the indorsement on the writ, the original statement of claim and the proposed substituted statement of claim all refer to a number of causes of action arising out of an ongoing wrongful act or omission, which causes of action accrued when the damage for which the plaintiff sued became manifest to its full extent on or about 30 May 1991: cf Dye v Griffin Coal Mining Co Pty Ltd (1998) 19 WAR 431.
A related argument upon which the appeal is grounded arises out of an act which amended the Workers' Compensation and Rehabilitation Act 1981 (WA). The amending Act, so far as concerns this appeal, by s 2(1) came into operation on 20 December 1993, the day when the legislation received the Royal Assent. Of course that was after this action had been instituted by the writ issued on 30 July 1993. The primary purpose of the 1993 amending Act was to add a Division 2 to Part IV of the principal Act. The provisions within that Division were not directed to issues of workers' compensation but to impose constraints on the power of the courts to award damages for personal injuries at common law.
By s 93B the Division "applies to the awarding of damages" against a worker's employer independently of the Workers' Compensation and Rehabilitation Act in respect of a disability suffered by a worker caused by negligence or some other tort where compensation has been paid under the Act in respect of the disability. That I think is this case if the legislation applies to it. By s 93C, if the Division applies, "a court is not to award damages to a person contrary to this Division.".
Putting it shortly, damages may only be awarded if the disability results in the death of the worker or is a serious disability as defined by the Act, and by s 93D(4) proceedings in which damages are sought are not to be commenced without the leave of the District Court. Section 93E imposes restrictions on the amount of damages which may be awarded for non‑pecuniary loss and s 93F limits the damages which may be awarded for the provision of gratuitous services to a plaintiff. So it may be seen that the sections inserted into the principal Act all operate prospectively upon the court's power to award damages. They would apply to this case if it comes to trial.
The sections which I have mentioned were all inserted by s 4(3) of the 1993 amending Act. By s 4(4) it is made clear that although the provisions inserted into the principal Act "have no operation in relation to a cause of action in respect of which legal proceedings have been instituted before 4.00 pm on 30 June 1993", "the provisions inserted by subs (3) apply to causes of action arising before the commencement of this section in the same way as they apply to causes of action arising after that commencement", except that s 93E and s 93F have no operation in relation to a cause of action arising wholly before 1 July 1993. The effect of that subsection is clear. This action having been instituted after 30 June 1993, except for s 93E and s 93F, the provisions of Division 2 of Part 4 of the principal Act will apply to any award of damages made in this action.
There are further transitional provisions in the 1993 Act. They apply to a case like this where the operative provision of the principal Act which restricts a court's capacity to award damages is s 93D. The effect of the transitional provisions is to ameliorate the perceived harshness of the restrictions on the court's capacity to award damages in certain cases. A procedure is provided, to which I shall come shortly, which includes by s 9 of the 1993 Act a structured process of negotiation with the employer or its insurer which may result in an acceptance of the availability of the benefits under the transitional provisions.
In the cases affected by the transitional provisions, there is a capacity to opt for what are described as "the improved statutory benefits" which were introduced into the principal Act at the relevant time, but which would not otherwise apply to the case in point. Alternatively, under s 11 of the 1993 Act an application may be made to the District Court for a declaration as to what are described as "preliminary questions" if they are in dispute between the parties.
One of the preliminary questions is whether or not at trial a court would be likely to find the relevant employer or insurer liable for damages. If not, that is the end of the operation of the transitional provisions and the plaintiff in the litigation must take his chances under the new provisions of the principal Act. If so, a further preliminary question is whether the damages that a court would be likely to award without regard for the operation of s 93D of the principal Act would be "significant damages". That term is defined by s 5(1) of the 1993 Act to mean damages of which the amount attributable to non‑pecuniary loss or the amount attributable to future pecuniary loss is at least $25,000.
So a sort of provisional assessment is required and under s 11, if an affirmative answer is given to the two preliminary questions and the plaintiff does not opt to discontinue the action without cost and take the improved statutory benefits under the principal Act, the litigation may be continued, the plaintiff enjoying the exemption from the operation of s 93D of the principal Act which is conferred by s 13 of the 1993 Act. These provisions have caused difficulty of interpretation and in their application. This Court has been required to give judgments directed to the resolution of those difficulties but this case does not require their discussion.
I should mention that s 17 of the 1993 Act provides that:
"Section 93D(4) and (5) of the principal Act (those are the provisions which require the leave of the District Court to commence an action for damages affected by the section) do not apply to the commencement of proceedings in respect of a registered cause if the certificate of registration was issued not more than 90 days before the proceedings are commenced and, when the proceedings are commenced, the certificate is filed."
Without at this stage needing to discuss the part played by a certificate of registration, it is quite evident that s 17 could have no application to this case where the action was commenced not only before the issue of a certificate of registration but also before the 1993 Act came into operation. Section 17 makes it clear that in such a case (and, it would follow, in any case) s 93D(4) and s 93D(5) do not operate retrospectively to require the grant of leave in relation to proceedings which have already been instituted.
I turn now to the procedural mechanisms in the 1993 Act which are concerned with the operation of the further transitional provisions discussed above, but I make the point, as will be evident from what I have already written, that if this is a case to which the further transitional provisions will not apply then, this being an action for the institution of which leave was not required, it may simply be pursued in the ordinary way in the District Court subject to the operation of s 93D of the principal Act.
A prospective plaintiff who wishes to pursue the benefits of the transitional provisions contained in the 1993 Act must, if he proposes to sue in respect of a "notifiable cause", register that cause of action with the Workers' Compensation and Rehabilitation Commission. A notifiable cause, as defined by s 5(1) of the 1993 Act, is a cause of action that arose wholly before 1 July 1993 in respect of a disability for which, because of s 93D of the principal Act, damages are prevented from being awarded other than under this Division. This cause of action was a notifiable cause. It was open to the respondent to notify the Commission of it but I should stress that it is not compulsory to do so and failure to do so has only the consequence that the benefit of the transitional provisions will not be available to the plaintiff.
By s 6 of the 1993 Act the Commission is to keep a register containing particulars of notifiable causes registered under the Division and of the persons pursuing those causes. There are time limits imposed for notification of a cause of action. It is not completely clear to me how those time limits would work. Section 6(2) provides that the Commission is required to register a notifiable cause if notified of it before 5.00 pm on 29 July 1993, a period of 30 days after the date specified in s 4(4) as being the date before which the provisions introduced into the principal Act would not have application to a court making an award of damages. However, as has been seen, the legislation did not come into operation until 20 December 1993.
However that might work, s 6(3) provides that the Commission may register a notifiable cause up to 30 June 1994 if satisfied that there is good reason for notice of the cause not having been given until after 5.00 pm on 29 July 1993. One purpose of registration with the Commission is presumably simply that the Commission, upon registering a notifiable cause, by s 8 of the 1993 Act, is to give to the proposed plaintiff a certificate of registration and is to notify the employer or insurer that it has done so. That is the mechanism adopted to ensure that the parties are brought together and that the necessary application is made, if required, to determine the preliminary questions which may affect the application to the particular case of the further transitional provisions in such a way as to provide to the plaintiff the benefit of those provisions and relieve that litigant from the operation of s 93D of the principal Act.
The provisions of s 5, s 6, s 7 and s 8 suggest, but do not expressly require, that the process of notification and registration and the issue of the certificate should precede the commencement of the proceedings in question. That will no doubt be the ordinary case but s 11 suggests that the sections may apply if the litigation has been instituted before registration because s 11 may apply if the plaintiff "has commenced court proceedings in respect of a registered cause (whether the cause was registered before or after the proceedings were commenced)".
I have mentioned that the respondent had a notifiable cause of action within the meaning of the 1993 Act s 5(1). In fact in respect of the injuries for which he sued which reached their final state on or about 30 May 1991 it may be that there were three notifiable causes of action, one for negligence, one for breach of an implied term of the contract of employment (which would amount to the same thing) and one for breach of statutory duty (which again in the circumstances of this case would appear to amount to the same thing as negligence). I say it may be that there were three notifiable causes of action because the alternative view is that the causes of action in negligence and for breach of statutory duty were the notifiable causes, having regard to the fact that we are here concerned with a procedural mechanism for the operation of transitional provisions which would exempt the respondent from the operative provision of Division 2 of Part IV of the principal Act, s 93D, and, as I have said, that Division only applies to the awarding of damages against the employer independently of the Act where the disability suffered by the worker was caused by the negligence or other tort of the worker's employer. It is not necessary for present purposes to decide which is the correct approach to the relevant procedural provisions of the 1993 Act.

It appears that the respondent did notify the Commission of the notifiable cause of action and so I presume whatever was notified is registered. It is not known when registration occurred but in evidence before us there are two certificates issued by the Commission in respect of the same registration no. 953. The first certificate is dated 10 January 1994. Presumably the notification would not have been too long before that date and so I presume registration occurred under s 6(3) of the 1993 Act. It may be, as I have mentioned, that the good reason for notice of the cause not having been given until after 5.00 pm on 29 July 1993 was that the respondent did not know at that time, and when the writ was issued on 30 July 1993, what the procedural requirements of this legislation would be, if anything was known about it at all.
The first certificate simply refers to the registration of a notifiable cause in the respondent's name and refers to s 8 of the 1993 Act. Notes endorsed on the certificate refer to the time limits provided in the sections which constitute the transitional provisions for taking further procedural steps or commencing or continuing proceedings. How accurately those notes reflect the provisions of the 1993 Act is again a matter of no moment. For myself I can see nothing wrong with that certificate. The purpose of the document is simply that the Commission acknowledges to the plaintiff or proposed plaintiff that the cause is registered and no more. Under s 8 the Commission gives separate written notification to the relevant employer or insurer of the cause of action registered. The appeal book contains no such document.
We were told that a number of District Court Judges have expressed the view that, on the face of the certificate itself, it should be possible to know precisely or in sufficient detail what is the nature of the cause of action, in the particular circumstances of the case, upon which action may be brought. For myself I cannot see why that should be so or why a certificate which does not contain such detail should be thought to be invalid so as to preclude pursuit of the benefit to be derived from the application of the transitional provisions. Again, the correctness of that view does not arise for decision in this case.
There must have been some doubt about the sufficiency of the certificate because it appears to have been re‑issued in the form of a document dated 30 June 1994. This document is in the same form as the original certificate and bears the same registration number but it adds the information that the date of the notifiable cause was 30 May 1991 and it names as the employer Western Pearlers Pty Ltd and the appellant. Perhaps that document was thought to more sufficiently comply with s 8 but the appellant draws a deeper significance from the fact that the certificate gives as the date of the notifiable cause, 30 May 1991.
The appellant's argument, reflecting the grounds of appeal, is that Kennedy DCJ erred in allowing the substitution of a statement of claim which referred to the onset of noticeable symptoms in October 1990 which gradually worsened thereafter and culminated in incapacity following the incident on 30 May 1991 "when the certificate made no reference to and could not have been construed to refer to any notifiable cause other than a notifiable cause in respect of a disability occurring on 30 May 1991".
This argument does not of course touch the original statement of claim as amplified in the further and better particulars but it will be recalled that, as I have mentioned, the defence dated 27 March 1997 takes a similar objection that not only is it said that the statement of claim exceeds the indorsement on the writ (a proposition upon which I have already commented adversely) but it is said the respondent is barred from continuing with the action because he has obtained neither a certificate of registration nor leave pursuant to s 93D of the Act. Again, I have already commented that in my view the point that the respondent would be barred from pursuing the litigation by reason of some invalidity in the certificate of registration or because the certificate was not wide enough, not only misconceives the nature and purpose of the certificate but overlooks the fact that it is concerned with the procedural requirements for pursuing a claim for relief under the transitional provisions and not in respect of the pursuit of the action for damages.
As to the requirement for leave, I have mentioned that s 17 of the 1993 would not apply to this case. The appeal is not concerned with the need to obtain leave to pursue this action. However, it will be apparent from what I have written above that although the 1993 Act s 4(4) would apply the provisions inserted into the principal Act by s 4(3) to this action, they would apply in their terms in a context where there is no indication of the retrospective operation of the provisions but only of their prospective operation in relation to the making of an award of damages or the capacity to do so.
In that context there would appear to be no reason to suppose that s 93D(4), which provides that proceedings in which damages are sought are not to be commenced without the leave of the District Court, and s 93D(5), which describes the circumstances in which leave is to be given, would not themselves operate prospectively. If that were so, s 93D(4) would have no application to proceedings which had already been instituted prior to the date when the legislation came into operation. That would at least avoid the oddity that the subsection would have the effect that leave would be required to continue an action which had already been regularly instituted and I merely mention that that of course is not the form in which s 93D(4) is enacted.
I return then to the argument advanced in support of the appeal. In my opinion it may not be accepted. It misconceives the purpose and effect of a valid certificate of registration. The legislation does not provide and in my view it would be remarkable if it had the effect that a certificate, the form of which is not controlled by the litigant who notifies the cause of action but by the Commission which issues the certificate, could condition or restrict the form in which an action could be brought, or if already brought the extent to which it might be validly continued. The certificate has nothing to do with either of those matters.
Under s 9 the plaintiff or proposed plaintiff within 60 days after his or her receipt of the certificate "may submit to the relevant employer or insurer details of the claim for damages in respect of the disability from which the cause arose, together with a copy of the certificate.". It is clear from that provision alone that the certificate itself plays no part in determining the nature of the cause of action upon which proceedings may be based but is merely evidence of the fact of registration. Then, as I have mentioned, negotiations with the employer or insurer may occur as a result of which an issue may arise between the parties as to whether liability is accepted or whether in the employer's view the damages which might be awarded are not significant damages within the meaning of the Act.
Under s 11 the employer or insurer has a period within which to apply to the District Court for a declaration as to either or both of the preliminary questions in relation to liability or the quantum of damages which are in dispute and if the employer or insurer does not do so the plaintiff or proposed plaintiff may continue the proceedings and enjoy the exemption given by s 13(1) from the restrictive provisions of s 93D. I have already referred to the substance of this procedure and it is sufficient in conclusion to say that no provision or combination of provisions of the 1993 Act give the certificate the effect for which the appellant contends. Even if that was the case, as I have already said, in my opinion both the

original statement of claim as amplified by further and better particulars and the proposed substituted statement of claim fell within the ambit of the causes of action to which the indorsement of claim referred and to which in its shorthand form the certificate of registration referred.

For those reasons in my opinion the appeal should be dismissed. It is unnecessary to deal with the issues raised in the respondent's notice of contention but I will comment shortly upon them.
The first asserts that the decision of Kennedy DCJ is maintainable on the ground that it was unnecessary for the respondent to file a certificate of common law registration or seek leave under s 93D of the principal Act in view of the fact that the writ was issued on 30 July 1993 and the 1993 Act did not become operative until 20 December in that year. As I have endeavoured to explain, it is never necessary to file a certificate of registration and failure to do so simply precludes the plaintiff or proposed plaintiff from the capacity to enjoy the benefit of the transitional provisions. As to the need to seek leave, I have already commented upon this proposition.
Then it is contended that the appellant waived any irregularity in the certificate of registration filed on 10 January 1994 by entering an unconditional appearance on 28 February 1994. For myself I can see no merit in the proposition that waiver might occur in those circumstances simply by entering an appearance which in any event, as the pleadings developed, was followed by a defence which took technical objections to the respondent's capacity to pursue the litigation.
McKECHNIE J:

Introduction

This appeal by the defendant in District Court proceedings concerns the effect of amendments made in 1993 to the Workers Compensation and Rehabilitation Act 1981 on a pending action for damages for personal injury.
To understand the appeal and the notice of contention, it will be necessary to set out the background to the claim and the relevant statutory provisions. For ease of reference I shall refer to the appellant as the defendant and the respondent as the plaintiff throughout.

Background

On 7 February 1990 the plaintiff commenced employment with the defendant as a diver.
On or about 31 May 1991 the plaintiff alleges that he was injured in the course of his employment.
On 30 July 1993 the plaintiff filed a writ of summons in the District Court. The indorsement of claim reads as follows:
" INDORSEMENT OF CLAIM
The Plaintiff's claim is for damages against the Defendant for personal injuries arising out of an accident on or about 31st May 1991 by gradual onset caused by the negligence and/or breach of statutory duty and/or breach of contract and/or breach of the Occupiers Liability Act, 1985 (WA) of the Defendant, its employees, servants or agents.
AND the Plaintiff claims damages and costs."
On 20 December 1993, Div 2 of Pt II of the Workers Compensation & Rehabilitation Amendment Act (No 48 of 1993) was assented to and came into effect. The effect of those provisions on various dates will be examined later.
On 10 January 1994 the plaintiff obtained a certificate of common law registration which read as follows:
"CERTIFICATE OF COMMON
LAW REGISTRATION
TO WHOM IT MAY CONCERN
This is to certify that the Commission has registered a notifiable cause within the meaning of Section 5 of the Workers' Compensation and Rehabilitation Amendment Act 1993 in the name of:
MICHAEL ALLEN RAMSDEN of LOT 13 SUNBURST GR, WELLINGTON HEIGHTS, COLLIE 6225 under Section 8 of the Act.
(Sgd)
H T NEESHAM
EXECUTIVE DIRECTOR
Dated: 10/01/1994
1.This gives you the ability to take Court proceedings if you wish. However, the Commission has not made any assessment of the merits of your common law claim.
2.You should consult your solicitor as soon as possible, because if you wish to pursue your common law claim you must comply with certain deadlines.
3.The deadlines for you to pursue your claim, if you wish, are:
•If you give your employer or insurer details of your claim within 60 days, you will be advised whether they accept or reject your claim.
•If you have already commenced proceedings, you or your solicitor must file this certificate with the District Court within 90 days. If you do not do this, you will not be able to pursue your claim.
•IF YOU WISH TO COMMENCE PROCEEDINGS, YOU MUST DO SO WITHIN 90 DAYS. IF YOU DO NOT DO THIS, YOU WILL NOT BE ABLE TO PURSUE YOUR CLAIM."
On 1 March 1994 the defendant entered an unconditional appearance to the writ.
On 30 June 1994 a second Certificate of Common Law Registration No 953 was issued to the plaintiff. That certificate was in the same terms as the first certificate except that the following had been added.
"Date of notifiable cause : 30/05/91
Employer : WESTERN PEARLERS PTY LTD & HITCHCOCK HOLDINGS PTY LTD"
This certificate was filed with the District Court on either 2 September or 29 September 1993.
On 30 September 1994 the plaintiff filed a statement of claim.
Paragraphs 4 and 5 of the statement of claim read:
"4.In or about October 1990 in the course of his employment with the defendant the plaintiff developed pain in his right hip.
5.On or about 30 May 1991 the defendant required the plaintiff to scrape barnacles off the hull of one of its vessels in an awkward position and angle during the course of which the plaintiff developed pain in his right hip."
On 17 February 1995 the plaintiff filed further and better particulars of the claim.
On 5 August 1996 the defendant filed a chamber summons to strike out various paragraphs (including par 4 of the statement of claim).
On 27 March 1997 the defendant filed a defence. Paragraphs 3 and 4 of the defence pleaded:
"3.Further, the Defendant says that if the Plaintiff did suffer injuries in the course of his employment with the Defendant from February 1990 and in October 1990, the Plaintiff is statute barred from continuing with any action in respect of those injuries by reason of:
(a)the Plaintiff's non‑compliance with the Workers' Compensation and Rehabilitation Act 1981 (as amended), in that the Plaintiff has obtained neither a Certificate of Registration nor leave pursuant to section 93D of that Act in relation to those incidents; and
(b)section 38 of the Limitation Act 1935-1978.
4.Further, or in the alternative, the Defendant says that the Statement of Claim exceeds and does not relate to the indorsement on this Writ of Summons filed in this action."
On 26 June 1997 the plaintiff filed a summons to amend the statement of claim.
On 18 March 1998 the Registrar refused leave.
The plaintiff appealed against that decision.
On 22 December 1998 Kennedy DCJ granted the plaintiff leave to amend the statement of claim although not in the manner set out in the proposed statement of claim. What she said was:
"… leave is granted to substitute a proper statement of claim specifying a gradual onset injury culminating on the final date specified."
The expression "gradual onset" is an echo of the indorsement of claim.
On 16 March 1999 this Court granted leave to appeal to the defendant on the following ground:
"The learned Judge erred in law in granting leave to the Plaintiff to amend the Statement of Claim to:
"…substitute a Statement of Claim specifying an unsafe system of work which caused gradual onset injury to the Plaintiff's hip first causing noticeable symptoms in October 1990 and being exacerbated during the period October 1990 to 31 May 1991 by the same unsafe system of work and then on 31 May 1991 that unsafe system of work caused a final exacerbation which resulted in the Plaintiff being unable to work at all."
At the hearing of the appeal, the court granted the plaintiff leave to argue a notice of contention that the decision of Kennedy DCJ should be affirmed on the following grounds, these being grounds other than those relied upon by the learned Judge namely that:
"1.It was unnecessary for the Plaintiff to file a Certificate of Common Law Registration or to seek leave pursuant to section 93D of the Workers' Compensation & Rehabilitation Act 1981 given that:
(a)The writ was issued on 30 July 1993;
(b)Part 2 of the Workers' Compensation & Rehabilitation Amendment Act 1993 did not become operative until 20 December 1993.
2.The Appellant (Defendant) waived any irregularity in the Certificate of Common Law Registration filed by the Respondent (Plaintiff) on 10 January 1994 by filing an unconditional appearance on 28 February 1994."

The Workers Compensation and Rehabilitation Amendment Act 1993 (the "amending Act")

To understand the ground of appeal it is now necessary to set out the relevant statutory provisions which bear on the issues to be decided.
Before doing so, it is appropriate to make this observation. The cross contentions of both parties to this appeal, and indeed the necessity of the appeal itself, have been brought about by the confusion engendered from the fact that the amendments are expressed to commence on one date but the Act was assented to at a later date.
The amending Act is expressed to come into operation on 30 June 1993. Yet it was not assented to until 20 December 1993.
Division 2 has two headings. The first is entitled "Constraints on awards of common law damages" and applies to an action for negligence such as that brought by the plaintiff.
Section 93D(4) provides that proceedings in which damages are sought are not to be commenced without the leave of the District Court.
By s 4(4) of the amending Act, s 93D(4):
"The provisions inserted by subsection (3) have no operation in relation to a cause of action in respect of which legal proceedings have been instituted before 4 pm on 30 June 1993 and, regardless of when legal proceedings are instituted, sections 93E and 93F of those provisions have no operation in relation to a cause of action arising wholly before 1 July 1993 but otherwise the provisions inserted by subsection (3) apply to causes of action arising before the commencement of this section in the same way as they apply to causes of action arising after that commencement."
The second heading for Div 2 is entitled "Further transitional provisions".
By s 5(1):
"'notifiable cause' means a cause of action that arose wholly before 1 July 1993 in respect of a disability for which, because of section 93D of the principal Act, damages are prevented from being awarded other than under this Division;"
Registration of certain causes of action is provided by s 6:
"6.     (1)     The Commission is to keep a register containing particulars of notifiable causes registered under this Division and persons who have those causes.
(2)     The Commission is to register a notifiable cause if it was notified of the cause before 5 pm on 29 July 1993.
(3)     The Commission may, not later than 30 June 1994, register a notifiable cause if it is satisfied that there is good reason for notice of the cause not having been given until after 5 pm on 29 July 1993.
(4)     The functions of this Commission under this section in respect of a notifiable cause are to be performed within 21 days after the day on which it is notified of the cause."
Section 6(2) is meaningless. As there was no amendment in place before 5.00 pm on 29 July 1993, there was no duty imposed on the Commission to register a notifiable cause. It was impossible for the plaintiff to have attempted compliance with the amending Act prior to 29 July 1993.
In respect of a case under the amending Act s 8, the Commission is required to do two things: give the plaintiff a certificate to the effect that a cause is registered and within 21 days notify the defendant or its insurer, in writing, that a cause is registered. No other details are required to be given to the defendant or its insurer. In particular, the Commission is not required to give details of the cause of action.
The purpose of these provisions, as later provisions make clear, is to bring the parties together in an attempt to negotiate. Thus, under the amending Act s 9 the plaintiff has 60 days during which he may submit to the defendant in this action, details of the claim for damages.

If details are submitted, the employer or insurer has a period to do certain things.
These provisions have a relevance as to the detail to be supplied in order to obtain the certificate.
Finally, s 17 provides that s 93D(4) and (5) do not apply to the commencement of proceedings:
"… in respect of a registered cause if the certificate of registration was issued not more than 90 days before the proceedings are commenced and, when the proceedings are commenced, the certificate is filed."

The decision of Kennedy DCJ

The issue before her Honour was whether the transitional provisions, in particular s 93A, applied to legal proceedings which had not been commenced by 30 June 1993. These were such proceedings.
Her Honour was of the view:
"As far as I am concerned a certificate of common law registration which specifies 30 May 1991 … must be taken to include a gradual onset injury culminating on or about the date specified in the certificate of common law registration."

The issues on appeal

The defendant asserted that the proposed amendment to the statement of claim differed from the notifiable cause reflected in the certificate of registration.
This in turn begs the question whether a certificate was required in the circumstances I have outlined.
The plaintiff, by the notice of contention, asserts that notwithstanding the fact that certificates were obtained, they were unnecessary.

Was a certificate necessary?

In my view the only reasonable interpretation of the amending Act is that the amendments cannot apply to an action which was on foot prior to 20 December 1993, the date of assent. This action is such an action.
The amendments do not at any point refer to the continuation of proceedings. For example, s 93D says proceedings are not to be commenced but is silent about proceedings already on foot.
The amending Act s 4(4) does not refer to s 93D.
Section 11 contemplates that an affected person has commenced court proceedings in respect of a registered cause (whether the cause was registered before or after the proceedings were commenced) and has within 90 days after the certificate was given, filed the certificate and given a copy to other parties. In that event, the employer or insurer may apply to a District Court Judge for a declaration as to preliminary questions.
Thereafter, certain events may come to pass.
If the affected person chooses to file a certificate, then the proceedings are exempt from the effect of s 93D including s 93D(4), the leave of court provision. In order to ultimately succeed, the plaintiff must establish future pecuniary loss or non‑pecuniary loss equal to or greater than $25,000.
If the employer or insurer does not apply to the District Court the affected person may continue the proceedings.
The amending Act s 17 provides that s 93D(4) does not apply to the commencement of proceedings in respect of a registered cause if the certificate of registration was issued not more than 90 days before the proceedings are commenced and when proceedings are commenced the certificate is filed.
In my view, the amending Act is silent as to the position of proceedings which were commenced between July and 20 December 1993.
Section 93(4) makes sense in its present form. To require it to have the effect contended by the defendant, a court would have to read into the section words suggesting that proceedings could not be continued without leave.
I decline to read words into a section which is clear in its terms and which fits within the general statutory scheme.
Nor do I consider that Parliament intended that persons in the position of the plaintiff would have to throw away costs and perhaps be barred under the Limitation Act by the necessity of discontinuing proceedings and obtaining leave to reinstate proceedings. Such action would be senseless and achieve nothing.
It was impossible for the Commission to comply with the amending Act s 6.
I do not consider that s 6(3) was intended to overcome the impossibility problem. The requirement under the Act to notify the Commission of a notifiable cause did not arise in this case until after proceedings had been regularly commenced in the District Court.
The plaintiff was given a choice under s 11. That choice was accompanied by several advantages. In fact, the plaintiff did register a certificate. It will be necessary to discuss the validity of the certificate.
But for the issue presently being considered, I am of the view that neither leave of the District Court nor the filing of a certificate were necessary pre‑conditions to continuation of the proceedings instituted on 20 July 1993.

The validity of the first Certificate

The validity of the first certificate is challenged. In part the challenge relates to matters I have just canvassed. However, the defendant also argues that the certificate is invalid because of a lack of particularity.
The second certificate is valid and particularises a claim on a certain date.
This particularisation of date means that the proposed statement of claim which was the subject of the plaintiff's application to the Registrar, and subsequent appeal, is beyond the notifiable cause referred to in the second certificate. The proposed statement of claim (which Kennedy DCJ did not allow) pleaded different causes of action beyond the certificate, and particularly, causes of action which occurred before 30 May 1991. The proposed statement of claim was also beyond the indorsement of claim.
The defendant's argument that the certificate was invalid draws support from and, in part, relies upon the decision of Barlow DCJ in Purton v Qantas Airways Limited, unreported; DCt of WA (Barlow DCJ); Library No 4264; 2 December 1994. At 8, Barlow DCJ said:
"For registration to achieve the broad purpose of the transitional provisions the particulars recorded in the register would need to be sufficient to identify a particular cause of action. The essential ingredients, or basic facts relating to a particular cause of action would include the name of the parties and the date, or at least the approximate date, on which it is alleged the cause of action arose.
The content of a certificate issued by the Commission pursuant to s 8 is not specified in the Amendment Act. Once again it seems to me, that for a certificate to achieve the broad purpose of the transitional provisions, it should contain sufficient particulars of the alleged cause of action to enable the cause to be identified. Unless a certificate purported to be given pursuant to s 8 of the Amendment Act contains such particulars, I do not think it can properly be described as a certificate within the meaning of that section, that is to say I do not think it is a certificate to the effect that a particular notifiable cause has been registered."
It is necessary to closely examine the legislative scheme and the purpose of registration.
I have previously set out the relevant provisions.
Neither the amending Act nor the regulations require a particular form of notification.
Once the Commission is notified of a cause, it has several functions to perform. The cause must be registered if the Commission is satisfied there is good reason for notice not having been given until after 5.00 pm on 29 July 1993. The Commission must register within 21 days.
The Commission is then obliged to give the affected person a certificate acknowledging that the cause is registered.
Significantly the Commission, not the affected person, has an obligation to notify the relevant employer or insurer within 21 days in writing that a cause is registered.
Thereafter the affected person has no obligation to do anything. The employer or relevant insurer has no obligations either.
The affected person could institute proceedings in the District Court. In that event, the certificate dispenses with the requirement for leave.
However, the aim of the Workers Compensation and Rehabilitation Amendment Act 1993 is to encourage settlement and bring the parties together. Therefore by s 9 the affected person has the right to approach the relevant employer or insurer. This approach is by way of submission of details for the claim of damages.
Upon submission various actions can be taken and consequences flow.
I agree with Barlow DCJ in Purton v Qantas Airways Ltd (supra) that:
"The broad purpose of the transitional provisions is to allow some relief in relation to some causes of action, namely those defined as notifiable causes. The purpose of requiring such causes to be registered is to identify and limit them and ensure that claims arising from such causes are either settled by negotiation or made the subject of court proceedings within the times specified by the Amendment Act."
There is considerable force in the reasoning of Barlow DCJ as to why the names of the parties and the approximate date on which the alleged cause of action arose are required on a certificate.
Nevertheless, I have, with respect, reached a different view. A cause of action is the fact or combination of facts which gives rise to a right to sue. In an action for negligence it consists of the wrongful act or omission and the consequent damage.
These details may show on the register. However, it is not necessary for the purposes of the amending Act that the certificate has any of the details upon it. The certificate is nothing more nor less than a notification of registration. It can be used by an affected person to take legal proceedings. It is not even necessary that the employer or insurer be served with a certificate. It is enough under the Act that they be notified in writing that a cause is registered. As previously pointed out, the expectation is that the affected party will subsequently submit details of the claim to the employer or insurer. At that time it would be expected that an affected person will supply details of place and time to allow the employer or insurer to investigate and then negotiate.
Therefore, I do not agree with Barlow DCJ that these details are required on the certificate.
I would hold that the first certificate, that issued on 10 January 1994, was a valid certificate. It was filed in the District Court on 8 March 1994, that is within 90 days of its issue. Consequently the plaintiff comes within the provisions of the Workers Compensation and Rehabilitation Amendment Act 1993 s 11.
As no application was made by the defendant for a declaration, s 11 has the effect in this case that the plaintiff may continue the proceedings in circumstances where the amending Act s 93D does not apply. This includes the requirement for leave.

The proposed substituted statement of claim

The proposed statement of claim before Kennedy DCJ did exceed the indorsement on the writ, specifying a number of different causes of action: Dye v Griffin Coal Mining Co Pty Ltd (1998) 19 WAR 431.
However, that proposed statement of claim was not allowed. The amendment which Kennedy DCJ would have allowed was in my view within the framework of the indorsement of claim which refers to personal injuries arising out of an accident on or about 31 May 1991 by gradual onset.
The application before Kennedy DCJ was an appeal on a point of pleading.
It was appropriate for the Judge to consider the overall merits of the case. I do not consider that in the circumstances she was wrong to refuse the amendments sought but nevertheless grant leave to the plaintiff to amend the statement of claim to particularise better facts within the compass of the indorsement of claim.
This appeal should be dismissed.