Hunt v Multiplex Constructions Pty Ltd - [2000] WADC 175

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: HUNT -v- MULTIPLEX CONSTRUCTIONS PTY LTD [2000] WADC 175

CORAM: O'BRIEN DCJ

HEARD: 3 JULY 2000

DELIVERED : 7 JULY 2000

FILE NO/S: CIV 4700 of 1999

BETWEEN: JOHN EDWARD HUNT
Appellant
AND
MULTIPLEX CONSTRUCTIONS PTY LTD (ACN 008 687083 )
Respondent

Catchwords:

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 30 per cent and that agreement or determination is recorded in accordance with the regulations; or
(b)the worker has a significant disability and elects, in the prescribed manner, to retain the right to seek damages and the election is registered in accordance with the regulations.
(4)For the purposes of subsection 3(b) the worker has a significant disability if it is agreed or determined that the degree of disability is not less than 16 per cent and that agreement or determination is recorded in accordance with the regulations."
There is nothing in the Amendment Act which in terms requires a step to be taken before an action can be commenced.
The respondent submits that the intention of parliament in the Amendment Act was to further restrict the entitlements of workers to bring an action in common law. It was submitted that the degree of disability is not a matter to be determined in the course of the action by a court but is a precondition to the institution of proceedings. Certainly, it would appear from the plain terms of s 93E that a court does not determine the degree of disability (Re Monger Ex Parte Woodford [1999] WASC 273 per McKechnie J at [7]). However, it does not follow that the degree of disability cannot be determined in the course of the action or that such determination is a precondition to commencing an action.
The effect of the respondent's submissions is as observed by Nisbet DCJ in Thomas v Arimco Mining Pty & Anor [2000] WADC 150 at [8] that compliance with s 93E(3) must be pleaded to ground the cause of action.
It was submitted that the decision of McKechnie J in Monger where his Honour decided that the degree of disability must be agreed or determined prior to the worker electing to retain the right to seek damages pursuant to s 93E(3)(b) can by analogy apply to s 93E(3)(a). In other words that just as a determination of disability must be made before an election to proceed at common law is made, a determination as to the degree of disability must be made before an action can be instituted. It is said that this would give effect to the intention of parliament to restrict common law liability for accidents occurring in the work place.
The respondent's counsel conceded that Monger was distinguishable from the present case. Great emphasis was put by counsel for the respondent on the intention of parliament and reference was made to excerpts from the Attorney General's second reading speech. However, the starting point in construing legislation is an analysis of the words of the legislation itself. The words of a Minister must not be substituted for the text of the law (R v Bolton (1987) 70 ALR 225).
The appellant submitted that to construe s 93E(3) as incorporating a precondition of a determination of disability before an action can be commenced would be to confuse the concept of accrual of a course of action at common law with the concept of awarding a remedy in respect of the cause of action. In my view that submission is right.
The issue was considered by Nisbet J in Thomas and his Honour referred to dicta by McKechnie J in Monger at 26 as follows:
"The opening words of s 93E(3), 'Damages can only be awarded if - ' are an expression of parliamentary prescription, principally to a judicial officer hearing a common law claim for damages. The Court cannot find that a worker has a significant disability. Only if the provisions of s 93E(4) are fulfilled can it be said that a worker has a significant disability."
Further support is found for this interpretation in Hitchcock Holdings Pty Ltd v Ramsden [2000] WASCA 15 per Murray J at [11]. After referring to the dicta of Wilson J in Do Carmo v Ford Evacuations Pty Ltd (1984) 154 CLR 234 at 245 as follows:
"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 …",
Murray J went on to say,
"In my opinion, the endorsement 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 … . (cf Dye v Griffin Coal Mining Co Pty Ltd (1998) 19 WAR 431." (Underlining added)
Further, McKechnie J said at [114]:
"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."
As Nisbet DCJ observed in Thomas at [9], the legislature knows the difference between the institution of proceedings and the award of damages.
I endorse and adopt with respect the reasons of Nisbet J in Thomas at 10, as follows:
"… Parliament is not saying that a worker has no cause of action for damages for negligence unless the provisions of s 93E(3) are met, it is simply saying that a court may not award damages unless the provisions of the Act are complied with. … [The respondent] must show that it was parliament's intention to remove the cause of action itself or so alter it that it could not be said to lie without the addition of some other necessary element before the cause was perfected in law. … It is abundantly clear that parliament has not chosen this course."
His Honour referred to arguments which addressed the policy behind the legislation at paragraphs 15 and 16. I note those observations including reference to the option of staying the writ. It was agreed at the hearing of this appeal that it would not be appropriate for me to make an order staying the action, an agreement which in my view was appropriately made.
The plain words of the section simply prohibit a judge from making an award of damages if the determination had not been made. This prohibition is directed to the remedy and not to the institution of proceedings.
In any event, the appellant has made an election pursuant to s 94E(3)(b).
On 19 December 1999, the appellant lodged the appropriate form together with accompanying medical evidence, with the Director of Workcover for the purpose of requesting a referral on the question of disability. On the same date, he forwarded the appropriate form for the purpose of registering for an election. It is not clear whether the determination has been made pursuant to s 93E(3)(b) but it would seem that the appellant has in any event complied with the prerequisites to making an election under s 93E(3)(b).
Accordingly, I make the following orders:
1.The appeal be allowed.
2.The respondent's chamber summons dated 24 January 2000 to set aside the writ of summons be dismissed.