Appeal from decision of Deputy Registrar to strike out action - Whether s 93E(3) of the Workers Compensation and Rehabilitation Act 1981 operates as precondition to commencement of action.

Legislation:

Workers Compensation and Rehabilitation Act 1981

Result:

Appeal allowed

Representation:

Counsel:

Appellant: Mr B Nugawela
Respondent: Ms A R Aria-Retnam

Solicitors:

Appellant: Friedman Lurie-Singh
Respondent: Jackson McDonald

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

Do Carmo v Ford Evacuations Pty Ltd (1984) 154 CLR 234
Hitchcock Holdings Pty Ltd v Ramsden [2000] WASCA 15
Monger ex parte v Woodford and Monger [1999] WASC 273
R v Bolton (1987) 70 ALR 225
Thomas v Arimco Mining Pty and Clough Ltd [2000] WADC 150

Case(s) also cited:

Booth v Aussie Roofing (WA) Pty Ltd [2000] WADC 131
Dossett v T K J Nominees Pty Ltd [2000] WADC 114
Escobar v Classic Property Services WA Pty Ltd [1999] WADC 149

O'BRIEN DCJ: By writ of summons dated 23 December 1999, the appellant claimed damages for personal injuries sustained and losses suffered in and as a result of an incident that occurred on or about 15 July 1998 on premises owned by the respondent. At the time, the appellant was an employee of the respondent and the injuries sustained were in the course of his employment.
The respondent had paid compensation to the appellant and accordingly, Division 2 of Part 4 of the Workers Compensation and Rehabilitation Act 1981 ("the Act") applies.
By Chamber Summons filed on 21 January 2000, the respondent applied for the writ to be set aside. On 8 March 2000, the Deputy Registrar set aside the writ and ordered that the appellant pay the respondent's costs of the application together with costs reserved in any event.
The appellant appeals against that decision.
The issue for determination is whether the provisions of s 93E(3) of the Act operate as preconditions to the issue of a writ or whether they are preconditions to the awarding of damages once the action has been commenced by writ.
By the Workers Compensation and Rehabilitation Act 1999 No 34 of 1994 ("the Amendment Act") as assented to on 5 October 1999, significant changes were made to workers' entitlements. These included restrictions on their right to pursue an award of common law damages.
Section 93E was amended. Prior to its amendment, s 93E prohibited the issue of proceedings at common law without the leave of the District Court and only then in certain circumstances.
The heading to s 93E reads, "Restrictions on awarding of damages and payment of compensation". Section 93E(3) provides:
"Damages can only be awarded if -
(a)it is agreed or determined that the degree of disability is not less than…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hunt v Multiplex Constructions Pty Ltd

Details

AGLC: Hunt v Multiplex Constructions Pty Ltd [2000] WADC 175
Case: [2000] WADC 175
Decision Date: 7 JULY 2000

CaseChat Overview and Summary

The matter before the court was an appeal against a decision by the Deputy Registrar to strike out an action. The plaintiff, Hunt, sought to recover damages from the defendant, Multiplex Constructions Pty Ltd, for injuries sustained during his employment. The case hinged on whether a specific provision of the Workers Compensation and Rehabilitation Act 1981, namely section 93E(3), must be satisfied before an action can be brought against an employer for damages. The appeal was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was the interpretation and application of section 93E(3) of the Workers Compensation and Rehabilitation Act 1981. The plaintiff argued that this provision did not operate as a precondition for the commencement of the action, whereas the defendant contended that the action could not proceed unless the plaintiff had complied with the requirements of that section. The court was required to determine whether compliance with section 93E(3) was a mandatory prerequisite to instituting legal proceedings against the employer for damages.

The court found that section 93E(3) did not impose a precondition for the commencement of the action. The relevant statutory provisions were considered, and the court held that the statutory scheme did not require compliance with section 93E(3) before an employee could seek damages from their employer. The court emphasised that the statutory framework provided for a comprehensive system of workers' compensation and rehabilitation, and that the requirements of section 93E(3) did not need to be fulfilled as a condition precedent to bringing an action for damages. Accordingly, the appeal was allowed, and the decision of the Deputy Registrar to strike out the action was set aside.

As a result of the court's decision, the plaintiff's action against the defendant for damages was reinstated. The court's ruling clarified that section 93E(3) of the Workers Compensation and Rehabilitation Act 1981 does not act as a precondition to the commencement of an action for damages against an employer. The plaintiff's right to seek compensation through the courts for injuries sustained in the course of employment was upheld, and the appeal was allowed in its entirety.

Orders