Kieronski v Woodside Energy Ltd

[2017] WADC 151

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   KIERONSKI -v- WOODSIDE ENERGY LTD [2017] WADC 151

CORAM:   DEPUTY REGISTRAR HARMAN

HEARD:   25 OCTOBER 2017

DELIVERED          :   29 NOVEMBER 2017

FILE NO/S:   CIV 2211 of 2016

BETWEEN:   CATHERINE KIERONSKI

Plaintiff

AND

WOODSIDE ENERGY LTD
Defendant

Catchwords:

Practice - Practice under the Rules of the Supreme Court of Western Australia 1971 - Application for summary judgment by defendant - Workers' Compensation and Injury Management Act 1981 s 93B and s 93K(4)

Legislation:

Workers' Compensation and Injury Management Act 1981 (WA) s 93B, s 93K(4)

Result:

Application dismissed

Representation:

Counsel:

Plaintiff:     Mr J R Brooksby

Defendant:     Mr A Lustig

Solicitors:

Plaintiff:     Donna Percy & Co

Defendant:     Jackson McDonald

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

Gable v Steel Cap Recruitment Pty Ltd [No 2] [2017] WADC 10

1. DEPUTY REGISTRAR HARMAN:  According to the claim indorsed on the writ the plaintiff seeks damages for a psychiatric injury sustained on or about 13 August 2013.  The defendant was the plaintiff's employer. 

2. By its application the defendant seeks leave to apply for summary judgment and for summary judgment, alternatively that the amended statement of claim be struck out.

3. The onus on an applicant for such leave and for judgment is to establish a clear case. 

4. The application is founded on the proposition upon issue of the writ the plaintiff had not complied with s 93K(4) of the Workers' Compensation and Injury Management Act 1981 (WA) (the Act). It is as follows:

   Damages in respect of an injury can only be awarded if -

   (a)the worker elects, in the manner prescribed in the regulations, to retain the right to seek the damages; and

   (b)the Director registers the election in accordance with the regulations; and

   (c)court proceedings seeking the damages are commenced after the Director gives the worker written notice that the Director has registered the election; and

   (d)the court is satisfied that the worker's degree of permanent whole of person impairment is at least 15%.

5. The plaintiff concedes that the writ issued other than in accordance with s 93K(4)(a) to s 93K(4)(c) inclusive.

6. The plaintiff relies upon s 93B of the Act. It is as follows:

   (1)This Division applies to the awarding of damages against a worker's employer independently of this Act in respect of an injury suffered by a worker, or a noise induced hearing loss suffered by a worker that is not an injury, if -

   (a)it was caused by the negligence or other tort of the worker's employer; and

   (b)compensation has been paid or is payable in respect of it under this Act, or would have been paid or be payable but for section 22.

7. It is common cause that compensation has not been paid by the defendant and that the parties are presently awaiting a determination as to whether she has any entitlement to compensation. 

8. The plaintiff submitted that when the writ issued she had no enforceable right to payment of compensation and accordingly div 2 (of pt IV) of the Act of which s 93K(4) is a part, had no application.

9. The defendant proposed that the reasons for decision of Parry J in Gable v Steel Cap Recruitment Pty Ltd [No 2] [2017] WADC 10 provides support for the proposition that it should succeed in the application. In that case the court awarded summary judgment to a defendant in circumstances where the plaintiff had not complied with s 93K(4). There is nothing in the reasons for decision that suggest consideration had been given to s 93B(1). The defendant did not suggest that the determination was binding.

10. I am satisfied that insofar as the applicant seeks leave and judgment the application should be dismissed.  Put on the alternative basis the result would be the same.