Johansson v Alcoa of Australia Ltd - [2018] WADC 114

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   JOHANSSON -v- ALCOA OF AUSTRALIA LTD [2018] WADC 114
CORAM:   DEPUTY REGISTRAR HARMAN
HEARD:   9 AUGUST 2018
DELIVERED          :   12 SEPTEMBER 2018
FILE NO/S:   CIV 4552 of 2016
BETWEEN:   RICHARD GRAHAM JOHANSSON
Plaintiff
AND
ALCOA OF AUSTRALIA LTD
Defendant

Catchwords:

Practice - Practice under the Rules of the Supreme Court 1971 - Order 16 - Statutory interpretation

Legislation:

Limitation Act 2005

Result:

Application dismissed

Representation:

Counsel:

Plaintiff	:	Mr G Donaldson SC
Defendant	:	Mr D R Clyne

Solicitors:

Plaintiff	:	Turner Freeman
Defendant	:	Harman Legal

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

Nil

DEPUTY REGISTRAR HARMAN:

The plaintiff issued a writ indorsed with his claim for damages for personal injury, loss and damage suffered as a result of contracting diffuse fibrosis, asbestosis and pleural plaques attributable to the inhalation of asbestos dust and fibres at the defendant's refinery whilst employed by Karina Constructions over a period of 6 months during parts of 1972 and 1973 and whilst employed by the defendant over the period from May 1973 to October 1998.
By its defence to the plaintiff's claim the defendant denies that the plaintiff is entitled to any relief.
After the action had been entered for trial the defendant filed a re‑amended defence by which for the first time it pleads:
9.Alternatively, pursuant to s 56 of the Limitation Act 2005, as the plaintiff has a permanent whole of person impairment of 18%, any cause of action resulting from the injuries alleged in paragraph 9 of the statement of claim has not accrued and pursuant to sections 93L and 93R of the Workers' Compensation and Injury Management Act 1985 cannot accrue in future.
Particulars
(a)On 2 February 2016, a medical panel constituted under s 36 of the WCIM Act made a determination pursuant to s 38 WCIM Act that the plaintiff's whole of person impairment resulting from the injuries alleged in paragraph 9 of the statement of claim was 18% and the disease was 'diffuse pleural fibrosis'.
(b)On 2 February 2016, the medical panel issued a Certificate of the Degree of Permanent Impairment Assessed for the Purpose of Part IV Division 2 Sub‑Division 3 for the purposes of section 93R.
(c)On 8 November 2016, the plaintiff filed a Form 34 - Election to Retain Right to Seek Damages with the Directorate, Conciliation, WorkCover WA.
(d)On 14 November 2016, the Director, Conciliation, Work Cover WA, recorded the Assessment in accordance with the regulations (section 93L(2)) and a certificate of the Assessment was given to the worker in accordance with section 146H(1)(b) of the WCIM Act.
At the same time the defendant issued an application for leave to apply and for summary judgment. By the substantive application, on the ground that the plaintiff's cause of action had not accrued by virtue of s 6 and s 56 of the Limitation Act 2005 (WA) (the Act), the defendant seeks an order that the action be dismissed and judgment be entered in its favour.
Leave is required as the application was lodged outside the time expressed in O 16. The question whether leave be granted is to be determined upon an exercise of discretion.
Summary judgment is not a step in litigation. The relevant rule simply expresses that leave is required where it is made after a specified time. The result of the substantive application would be a significant factor in considering whether to grant leave.
The power to award summary judgment engages a provision of discretion. Summary judgment would only be awarded in favour of a defendant where it is clear that the plaintiff has no case. Whether that standard is achieved will be determined upon an assessment of the case put in the application. The onus on each party is no different to that on a party to any other interlocutory application: to ensure that there is support for any submission that it makes.
Sections 6 and 56 of the Act are as follows:
6.(1)Section 55 or 56, as is relevant to the case, applies to ascertain when a cause of action relating to a personal injury to a person accrues.
(2)If, under the relevant section, the cause of action accrues before commencement day, the applicable limitation period in that case is that which would have applied before commencement day, whether or not that period has expired.
56.(1)A cause of action for damages relating to a personal injury -
(a)that is attributable to the inhalation of asbestos; and
(b)to a person who did not have knowledge of the relevant facts before 1 January 1984,
accrues when the person has knowledge of the relevant facts.
(2)For the purposes of this section a person has knowledge of the relevant facts in relation to a cause of action when the person has knowledge -
(a)that the injury in question was significant;
(b)that the injury was attributable in whole or in part to the act or omission which is alleged to constitute the cause of action;
(c)of the identity of the defendant; and
(d)if it is alleged that the act or omission was that of a person other than the defendant, of the identity of that person and the additional facts supporting the bringing of an action against the defendant,
and knowledge that any acts or omissions did or did not, as a matter of law, give rise to a cause of action is irrelevant.
(3)For the purposes of this section an injury is significant if the person whose knowledge is in question would reasonably have considered it sufficiently serious to justify the person's commencing an action for damages against a defendant who did not dispute liability and was able to satisfy a judgment.
(4)For the purposes of this section, an injury that -
(a)before 14 November 2005, is a disability as defined in the Workers ' Compensation and Injury Management Act 1981; or
(b)on or after 14 November 2005, is an injury as defined in that Act,
is not to be treated as being significant unless either the parties to the proposed action have agreed, or a medical panel constituted as described in section 36(1) of that Act -
(c)has determined that the degree of the disability assessed in accordance with section 93D(2) of that Act, is 30% or more; or
(d)has assessed that the worker's degree of whole of person impairment evaluated as described in sections 146A and 146C of that Act (on or after 14 November 2005), is 25% or more,
as is relevant in the worker's case.
(5)For the purposes of this section a person's knowledge includes knowledge which the person might reasonably have been expected to acquire -
(a)from facts observable or ascertainable by the person; or
(b)from facts ascertainable by the person with the help of medical or other appropriate expert advice which it is reasonable for the person to seek,
but a person is not to be fixed under this subsection with knowledge of a fact ascertainable only with the help of expert advice so long as the person has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice.
The questions raised by the application are whether by s 6 and s 56 of the Act the legislature has provided for dismissal of the action and whether such a result would be available by way of summary judgment. In my opinion the answer to each of those questions is no.
Neither s 6 nor s 56 of the Act expressly provide for dismissal of an action. Indeed there is no reference to an action in either provision, only to an antecedent cause of action. Accordingly the case put by the applicant would require an interpretation of those provisions to the effect that by their enactment the legislature had intended to provide for dismissal of an action.
Although s 56 of the Act has modified elements of a relevant cause of action in that knowledge of specified facts bears upon the existence of an injury and degrees of disability or impairment qualify injury, it remains the case that a relevant cause of action would be established by common law.
A cause of action establishes a common law right of access to a court to seek redress. The legislature would be taken as having barred the exercise of such a right only where it has expressed itself in the clearest terms. A court would not be disposed to read legislation that restricts such access to any greater extent than the legislature expressly provides.
A feature of any process of interpretation would involve consideration of the purpose of s 56 of the Act. In my opinion it may be no more than is expressed at s 6(1) of the Act: to deem when a cause of action has accrued and does so for the purposes of the Act.
Turning to the second question that I have posed, there is neither pleading nor evidence that would establish the date of accrual of the cause of action upon which the action is founded. It is not the usual course for a plaintiff to plead grounds to establish that a cause of action had accrued prior to the issue of a writ. The plaintiff has not done so. He has chosen to provide no evidence. It is open to consider that the plaintiff had not relied upon s 56 of the Act.
Ultimately there is authority to the effect that in the context of summary judgement the court ought not determine a question that calls for statutory interpretation where the answer would be informed by findings on evidence.
According to the terms of the application the defendant's case is limited to the proposition that the cause of action had not accrued prior to the issue of the writ. By its submissions it also puts the proposition that as the law stands the plaintiff could not succeed at trial.
The defendant's portrayal of the difficulties in which the plaintiff finds himself arise from statutory provisions. It would be unsafe to conclude that the relevant law would not change prior to trial.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
JC
REGISTRAR'S ASSOCIATE
11 SEPTEMBER 2018