Lalic v DJ Hobbs Panel N Paint Pty Ltd
[2005] NSWWCCPD 33
•10 May 2005
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Lalic v DJ Hobbs Panel N Paint Pty Ltd [2005] NSWWCCPD 33
APPELLANT: David Lalic
RESPONDENT: DJ Hobbs Panel N Paint Pty Ltd
INSURER:GIO General Ltd
FILE NUMBER: WCC 12108-03
DATE OF ARBITRATOR’S DECISION: 13 April 2004
DATE OF APPEAL DECISION: 10 May 2005
SUBJECT MATTER OF DECISION: Election under section 151A of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER: Acting Deputy President Deborah Moore
HEARING:On the papers
REPRESENTATION: Appellant: Kells The Lawyers
Respondent: Hunt & Hunt Lawyers
ORDERS MADE ON APPEAL: The decision of the Arbitrator, dated 13 April 2004, is revoked and the following decision is made in its place:
1.Leave is granted to the Appellant to proceed with his application for non-economic loss or permanent impairment compensation pursuant to sections 66 and 67 of the Workers Compensation Act 1987.
2. Pursuant to the provisions of section 65 of the Workers Compensation Act 1987, if a dispute still exists as to the degree of permanent impairment, the Appellant is to be referred for assessment by an Approved Medical Specialist.
3. The Registrar is to now refer the matter to an Arbitrator for determination and/or referral to an Approved Medical Specialist.
BACKGROUND TO THE APPEAL
David Lalic (‘the Appellant’) suffered an injury to his left leg on 4 November 1997 whilst employed as an apprentice spray painter by DJ Hobbs Panel N Paint Pty Limited (‘the Respondent’). He was struck by a cherry picker being driven by a co-worker.
Mr Lalic filed a Statement of Claim in the District Court of New South Wales on 30 January 2001 seeking damages against the Respondent, named as First Defendant in those proceedings.
On 11 July 2003, the Appellant lodged a claim against the Respondent’s insurer in the Workers Compensation Commission (‘the Commission’) for non-economic loss compensation in the sum of $30,000.00.
The Respondent denied liability for this claim on the grounds that the Appellant was not entitled to bring proceedings in the Commission having made an election to pursue common law damages pursuant to section 151A of the Workers Compensation Act 1987, (‘the 1987 Act’) and that the Appellant’s Application to Resolve a Dispute (‘the Application’) was void ab initio.
On 24 November 2003, the Respondent’s insurer made an application for leave to refer the question of whether the Appellant had made an election under section 151A of the 1987 Act, as a ‘Question of Law’ to the President. Leave was refused on 24 December 2003 and the matter referred to an Arbitrator for determination.
A Certificate of Determination was issued on 13 April 2004.
The permanent loss compensation sought could not be determined as the matter had not been referred to an Approved Medical Specialist and the sole issue for determination was whether the Appellant was precluded from proceeding with that claim by virtue of section 151A of the 1987 Act.
In the original Application both parties made written submissions only, the Appellant on 20 February 2004, 9 March 2004, and the Respondent on 4 March 2004, and accordingly there is no recording of proceedings and the Arbitrator determined the matter on the papers.
The determination of the Commission was that the Appellant’s Application for permanent loss compensation pursuant to sections 66 and 67 of the 1987 Act, was dismissed for want of jurisdiction.
10. On 30 April 2004, the Appellant lodged his ‘Application to Appeal against Decision of an Arbitrator’ on the following grounds:
“1. The Arbitrator incorrectly applied the law.
2.The Arbitrator misconstrued or ignored the decision of Zurich Australian Insurance Limited [sic].
3.Insofar as this case can be characterised as both a claim under the Motor Accidents Act and the Workers Compensation Act, the claim is to be characterised only as a claim under MACA;…”
ON THE PAPERS REVIEW
11. The Commission, by Direction dated 20 July 2004, directed both the Appellant and the Respondent to file with the Commission and serve on the other party a written statement as to whether the leave application and Appeal should be determined on the papers, and if not, why not, by 28 July 2004.
12. On 22 July 2004, the Appellant filed and served on the Respondent his “submissions as to whether or not the Appeal should be determined on the papers”. In short, the Appellant submitted that it was premature to determine this question since as at 22 July 2004, he had not seen the Respondent’s submission concerning the Appeal, and it was not possible for him “to make sensible submissions concerning whether or not the Appeal could be dealt with on the papers”.
13. On 28 July 2004 the Respondent filed and served on the Appellant written submissions on the Appeal including a submission as to whether the Appeal should be determined on the papers. The Respondent submitted as follows:
“4.1The Appellant has asserted that the decision of the Court of Appeal in the Peter Warren [sic] is wrong and should not be followed… but there is no evidence that this decision has been specifically over ruled by the Court of Appeal or higher authority.
4.2The issue does involve a Question of Law that the Respondent submits would be most appropriately dealt with by a hearing rather than being determined on the papers.”
14.Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing”.
15. I note that the original proceedings were determined on the papers. The Arbitrator states at paragraph 10 of the Statement of Reasons for Decision:
“The parties were advised of the intention to determine the dispute without holding a Conciliation Conference or Arbitration Hearing (in accordance with the Commission Guidelines). The parties have agreed to the determination of the matters without a conference or formal hearing”.
16. Whilst clearly the issue does involve a Question of Law, the President determined that it was not ‘novel’ or ‘complex’ under section 351(3) of the 1998 Act, noting that “the legislative provisions and some of the relevant case law are referred to, and/or contained in, the submissions…”.
17. Both parties filed extensive written submissions in the proceedings before the Arbitrator.
18. The Appellant filed submissions on the Appeal on 20 February 2004, and undated submissions in response to the Respondent’s submissions of 4 March 2004, 3 May 2004, 9 June 2004, 17 August 2004 and 30 September 2004.
19. The Respondent’s solicitors in a letter to the Registrar dated 7 June 2004, claimed not to have received notice of the Appeal until 4 June 2004, and sought time to make its submissions which it did on 28 July 2004, relying also on earlier submissions dated 4 March 2004. No further submissions have been made by the Respondent since 28 July 2004.
20. Both party’s submissions contain extensive references to the District Court pleadings, motor accident and workers compensation legislation and numerous authorities. Having carefully read all of the documents before me, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
SUBMISSIONS, DISCUSSION AND FINDINGS
21. The Grounds of Appeal are set out in paragraph 10 above. The issue is whether an election has been made pursuant to section 151A of the 1987 Act as a consequence of the Appellant seeking damages against the Respondent in his Statement of Claim filed 30 January 2001, or whether, as the Appellant submits, the injury was a result of “a classic Motor Vehicle Accident” and as such does not represent an election pursuant to section 151A.
22. Section 151A(2) of the 1987 Act (as it applied to 27 November 2001) provides:
“A person to whom compensation is payable under this Act, in respect of an injury is not entitled to both:
(a) permanent loss compensation in respect of the injury; and
(b) damages in respect to the injury from the employer liable to pay that compensation,
but is required to elect whether to claim the permanent loss compensation or those damages”.
23. Section 151A(3) of the 1987 Act (as it applied to 27 November 2001) provides:
“The person makes that election (or is taken to have made that election):
(a) by commencing proceedings in a court to recover those damages or by accepting payment of those damages…”
24. Section 151A(1) of the 1987 Act (as it applied to 27 November 2001) is as follows:
“damages does not include damages to which Part 6 of the Motor Accidents Act 1988 or chapter 5 of the Motor Accidents Compensation Act, 1999 applies”.
25. The Appellant submits that in circumstances where the proceedings for damages relate to a motor accidents claim, a worker is not precluded by section 151A from also making a workers compensation claim in the Commission, for permanent impairment.
26. It is important to consider the definition of ‘damages’ and ‘injury’ in the Motor Accidents Act 1988 (relevant to this case but essentially identical with the provisions in the Motor Accidents (Compensation) Act, 1999). ‘Damages’ is defined in section 69(1) as “an award of damages, which relates to the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of their vehicle”.
27. ‘Injury’ is defined in section 3(1) as follows:
“Injury means personal or bodily injury caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle if, and only if, the injury is as a result of and is caused during:
1. The driving of the vehicle;
2. A collision or action taken to avoid a collision with the vehicle; or
3. The vehicle running out of control; or
4. Such use or operation by a defect in the vehicle…”
28. The circumstances of the Appellant’s injury would certainly seem to fall clearly within the definitions described above. The Arbitrator stated at paragraph 27:
“There is no dispute that the fault of the driver of the cherry picker caused the injury to the Applicant and that the injury was caused by the fault of the driver in the use or operation of the vehicle”.
29. The circumstances of the accident do not seem to be in dispute between the parties.
30. The Respondent’s submissions essentially focus on the assertion that the pleading in the Statement of Claim (in particular, that clause seeking “damages against the First Defendant calculated at Common Law or alternatively under the 1987 Act”) is so specific that there can be no doubt as to the Appellant’s intentions (my emphasis) to bring a claim for damages against the Respondent as the employer.
31. The Respondent further submits (clause 2.5 of the submissions on Appeal) that an enquiry as to how the accident or injury should be characterised is not the correct enquiry, and that section 151A of the 1987Act requires an investigation as to the nature of the damages.
32. That is an incorrect assertion in light of a number of recent authorities to which I will refer. Both enquiries are necessary to determine the issue.
33. The purported “intent” is not necessarily determinative in the enquiry. Pleadings can be amended, and the failure to amend a pleading is not fatal to any assertion if the facts necessary to support such an assertion are apparent and able to be contested at trial.
34. The Arbitrator seems to have focused her enquiry on the “intent” of the Appellant. She notes (paragraph 27 of the Statement of Reasons) that:
“The Applicant included a clause that purported to seek damages under common law and the Workers Compensation Act, 1987 against the Respondent. The Applicant also allegedly brought a Notice of Motion under the Workers Compensation Act, which was later withdrawn by consent. This seems to indicate that there was intent to commence proceedings in a court to recover damages, which were not damages under the Motor Accidents Act, 1988 or under the Motor Accidents Compensation Act, 1999”.
35. The Arbitrator went on to refer to the decision of Deputy President Flemming in Cardona v Penrith City Council [2003] NSW WCC PD 36 citing this passage:
“The Arbitrator correctly stated that the task when determining whether an election has been made is to look at the substance and characteristics of the claim actually made”.
36. An enquiry into a party’s “intent” may form part of an overall enquiry, but what is determinative is the substance and characteristics of the claim actually made. In this case, the Appellant claimed that he was struck on the leg as a consequence of the actions of the driver of the cherry picker. The substance and character of the incident clearly involved the operation of a motor vehicle.
37. This is precisely what Spigelman CJ said in Zurich Australian Insurance Limited v CSR Limited (2001) 52 NSWLR 193 (‘Zurich’):
“The Appellant submitted the injury was not caused ‘in the use or operation’ of the trailer. The injury was caused by an unsafe system of work or in the design of the trailer. Nothing in the language used, or scope, purpose or operation of the Act suggests that a dual characterisation of ‘fault’ is impermissible. The definition applies so long as the fault may be characterised in one of the ways set out within it. It matters not that some other characterisation may also be appropriate”.
38. The Arbitrator in my view has incorrectly interpreted the Zurich decision. Indeed, no reference is made to that decision in the Reasons.
39. If the accident can be characterised as a ‘motor accident’, it matters not that some other characterisation, for example, a system failure, may also be appropriate.
40. The Arbitrator made extensive reference to the decision of McMartin v Peter Warren (Fairfield) Pty Limited (1995) 11 NSWCCR 413 (‘Peter Warren’), relied upon by both parties in their submissions. The Arbitrator (at paragraph 24) refers to the judgment of Sheller JA referring to the ‘three enquiries test’ set out in NRMA Insurance Limited v NSW Grain Corporation (unreported) Court of Appeal, 8 December 1995; that is, (1) whether the owner or driver of the vehicle was at fault…. (2), whether the fault caused the injury… and (3), whether the fault … was in “the use or operation of the vehicle” (i.e Part 6 of the Motor Accidents Act 1988).
41. The Arbitrator then sought to distinguish the present case from Peter Warren by noting at paragraph 27:
“The Applicant did not however seek to limit the award of damages only to damages under the MAA.. in fact, the Applicant included a clause that purported to seek damages under Common Law and the Workers Compensation Act, 1987… the Applicant also brought a Notice of Motion under the Workers Compensation Act (to extend the time limit under section 151D) which was later withdrawn by consent”.
The Arbitrator then concludes there was an intent to recover damages other than under the Motor Accidents Act 1988 and states at paragraph 31 “in substance the claim as stated above seems to be under the Motor Accidents Act. However, the characteristics of the claim seem to create some doubt as to the intention with which the claim was filed”.
42. The Arbitrator then posits the question that, if no election was intended, why did the Statement of Claim seek damages under Common Law and workers compensation legislation? In so doing, the Arbitrator concluded (at paragraph 35) “though the particulars of negligence do all relate to the operation of a motor vehicle, these factors indicate that in substance and characteristics the claim was not confined to a claim under the Motor Accidents Act only”. The Arbitrator accordingly found that the Appellant had made an election.
43. In Peter Warren the Plaintiff pleaded specifically that proceedings were regulated under the provisions of the Motor Accidents Act 1988 and Sheller JA in dealing with that aspect of the pleading concluded that the claim was limited to an award of damages under Part 6. No “dual pleading” was asserted. The Respondent therefore submits that the Appellant’s Statement of Claim did not seek to limit the award of damages only to damages under the Motor Accidents Act 1988 and was (paragraph 3.9) “a deliberate act of pleading” leading to an election.
44. But the Zurich decision suggests that the style or “language” or “characterisation” of a pleading is immaterial to an examination of the real “substance” of the claim. A subjective assessment of the style of pleading cannot be substituted for an objective analysis of the actual claim made.
45.This approach has been followed by the Court of Appeal in a number of subsequent decisions.
46. Emad Trolley Pty Limited v Shigar (2003) NSWCA 231 (‘Emad Trolley’) the Plaintiff was Westfield Centre. The trolley truck was a motor vehicle. The plaintiff commenced proceedings against his employer pleading breach of duty and system failure in a “deliberate act of pleading” seeking to avoid the operation of the Motor Accidents Act 1988. The Court of Appeal held that the Statement of Claim should be dismissed (procedural failure), as the incident was a motor accident. The fact that it was also a claim, which could be “characterised” as a breach of the employer’s duty of care was irrelevant.
47. In the present case, an examination of the circumstances of the accident lead to no other conclusion than that it was a ‘motor accident’ within the meaning of the Motor Accidents Act 1988.
48. More recently, the Court of Appeal has decided the case of GLG Australia Pty Limited v Nominal Defendant & Ors [2004] NSWCA 166 which has particular relevance to the present claim.
49. Briefly, the Plaintiff was injured at the premises of GLG. He was employed by another Defendant, Ready Work Force. At GLG, he was standing on a ramp leading to a landing. In order to load a container, the Plaintiff was inside it loading boxes. A forklift truck would periodically go up the ramp to the landing, collect a pallet, then reverse down the ramp. This caused vibrations on the ramp and container and on one such occasion, the Plaintiff was struck by a box dislodged from the container.
50. The Plaintiff sued the Defendants, claiming damages. He alleged inter alia that GLG was negligent in its operation of the forklift which it owned and which was driven by GLG’s employee. In its defence, GLG alleged, inter alia, that the Plaintiff’s damages should be assessed in accordance with the Motor Accidents Act 1988.
51. The primary Judge held the injury occurred as a result of the system of work and also held GLG and Ready Work Force liable. He stated that the injury was not caused by the driving of the motor vehicle in any negligent manner.
52. Hodgson JA, in delivering judgment said at paragraph 54:
“In my opinion, the way the vehicle was used was a necessary and important element in the fault of the owner of the vehicle. The system of work was held to be unsafe because it was such that the container, in which boxes were stacked, was caused to vibrate; and it was the forklift truck itself that caused the vibration… Accordingly, in this case the injury was a result of and caused during the driving of the motor vehicle”.
53. His Honour made extensive reference to Emad Trolley, Zurich and particularly Pender v Power Coal [2002] NSWSC 925 (‘Pender’). In the latter case, Wood CJ held that, in whatever way the case was put, the Plaintiff’s case came down to a fault in the use or operation of a motor vehicle, for which the owner of the motor vehicle was responsible.
54. It seems that the definition of ‘injury’ under the Motor Accidents Act 1988 where injury is described as being caused “by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle” continues to be broadened (see Allianz Australia Insurance Limited v GSF Australia Pty Limited (2003) 57 NSWLR 321 (‘Allianz’). Hodgson JA noted (paragraph 55) “…the view of the majority in Allianz that one of the sub-paragraphs (i) – (iv) of paragraph (a) of the definition of ‘injury’ can be satisfied, even though the fault of the owner of the vehicle lies elsewhere, was adopted also in Emad. Leave has not been sought to reargue these cases, and in my opinion they should be followed”.
55. His Honour further notes “the dissenting judgment of Santow JA in Allianz was essentially on the basis that the injury was not caused by the defect in the vehicle in that case, because the defect would have been quite harmless, but for an extraordinary direction given by the Plaintiff’s employer, the owner of the vehicle, to manually carry out a task that should never have been carried out manually. The majority Judges disagreed with this view on that case;”.
56. In other words, whatever the language, pleading or perceived intent of a claim, if the injury resulted from the use or operation of a motor vehicle, the claim must be regarded as a motor vehicle accident in accordance with the Motor Accidents Act 1988.
57. I should add that leave had been given to argue the dissenting judgment of Santow JA in Allianz in the High Court, but at present, the High Court has reserved, so that the decision referred to stands, and in my view should be followed.
58. The Respondent’s submission at paragraph 4.1 that there is no evidence that Peter Warren has been specifically overruled by the Court of Appeal would seem erroneous in light of the authorities referred to above.
59. The Arbitrator’s conclusion that “in substance and characteristics the claim was not confined to a claim under the Motor Accidents Act only” and that therefore, the exclusion under section 151A(1) does not apply, is inconsistent with the decision of Gunter v State Transit Authority of NSW [2004] NSWCA 330 (‘Gunter’).
60. In Gunter, the Plaintiff was injured when struck by a bus stop shelter, which was excessively close to the road. The bus shelter was disturbed as a result of being struck by a bus. In his Statement of Claim, he pleaded only negligence in placing the bus stop shelter too close to the road, conceding that the rest of the acts of negligence came into the description of the motor accident.
61. It was held by the Court of Appeal that where an injury was caused partly by the use or operation of a motor vehicle and partly by some independent act of negligence, it is still a motor accident so that all causes of action were subject to the threshold in the Motor Accidents (Compensation)Act 1999. Reference was made to the Allianz case, and the majority decision in that case was followed.
62. In light of these decisions, whether the Appellant in the present matter intended to proceed at Common Law or under the motor accidents legislation is irrelevant; and the language of the pleadings does not in itself constitute an election. What is clear and what a court or tribunal in determining the claim would find on the facts asserted, is that the injury was caused entirely by the use and operation of the cherry picker.
CONCLUSION
63. The Appeal is successful on all grounds. The Arbitrator incorrectly applied the law as set out in the many authorities to which I have referred and in particular, Zurich, Emad Trolley and Pender. Whilst some of the decisions post-date the Arbitrator’s determination, in all cases, Zurich and similar cases have been followed.
64. The claim must be characterised as a claim under the motor accidents legislation, and accordingly, the exclusion under section 151A(1) is applicable, and the Appellant is not precluded from bringing an application for permanent impairment under the workers compensation legislation.
DECISION
65. The decision of the Arbitrator dated 13 April 2004 is revoked and the following decision is made in its place:
1.Leave is granted to the Appellant to proceed with his application for non-economic loss or permanent impairment compensation pursuant to section 66 and section 67 of the 1987 Act.
2.Pursuant to the provisions of section 65 of the Workers CompensationAct 1987, if a dispute still exists as to the degree of permanent impairment, the Appellant is to be referred for assessment by an Approved Medical Specialist.
3.The Registrar is to now refer the matter to an Arbitrator for determination and/or referral to an Approved Medical Specialist.
COSTS
66. The Respondent is to pay the Appellant’s costs of the Appeal as agreed or assessed.
Deborah Moore
Acting Deputy President 10 May 2005
I CERTIFY THAT THIS IS A TRUE ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
0
7
0