Ligutan v Insurance Australia Ltd
[2023] WADC 155
•21 DECEMBER 2023
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: LIGUTAN -v- INSURANCE AUSTRALIA LTD [2023] WADC 155
CORAM: FLYNN DCJ
HEARD: 8 NOVEMBER 2023
DELIVERED : 21 DECEMBER 2023
FILE NO/S: CIV 159 of 2021
BETWEEN: PETRONILO LIGUTAN
Plaintiff
AND
INSURANCE AUSTRALIA LTD
First Defendant
AAI LIMITED
Second Defendant
UNIVERSAL STONE (WA) PTY LTD
Third Defendant
MALYTA PTY LTD
Fifth Defendant
Catchwords:
Workers' compensation - Preliminary issue of law - Worker seeks damages against multiple previous employers - Manner of exercise of election of right to seek damages - Whether s 94K of the Workers' Compensation and Injury Management Act 1981 (WA), reg 22 and Form 34 of the Workers' Compensation and Injury Management Regulations 1982 (WA) preclude an award of damages against an employer who is not named on the Form 34
Legislation:
Workers' Compensation and Injury Management Act 1981 (WA)
Workers' Compensation and Injury Management Act 2023 (WA)
Workers' Compensation and Injury Management Regulations 1982 (WA)
Result:
Preliminary issue determined in favour of the plaintiff
Representation:
Counsel:
| Plaintiff | : | Mr B J Tomasi |
| First Defendant | : | Mr P E Jarman |
| Second Defendant | : | Mr P E Jarman |
| Third Defendant | : | Mr P E Jarman |
| Fifth Defendant | : | Mr G R Hancy |
Solicitors:
| Plaintiff | : | Shine Lawyers Perth |
| First Defendant | : | McCabes |
| Second Defendant | : | Moray & Agnew Solicitors (NSW) |
| Third Defendant | : | McCabes |
| Fifth Defendant | : | Moray & Agnew Lawyers |
Case(s) referred to in decision(s):
Beasley v Pilbara Mining Alliance Pty Ltd [2022] WASCA 25
Brinkley v P & O Trans Australia WA Pty Ltd [2009] WADC 16
Di Paolo v Salta Constructions Pty Ltd [2015] VSCA 230
Dosset v TKJ Nominees Pty Ltd [2003] HCA 69; (2003) 218 CLR 1
Hall v Jones (1942) 42 SR (NSW) 203
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362
Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531
FLYNN DCJ:
Introduction
The plaintiff (Mr Ligutan) is a stonemason. He completed his apprenticeship in the Philippines. He moved to Australia in 2007 and worked for a series of employers. He commenced employment with the fifth defendant (The Maker) in 2018.[1] Before that, Mr Ligutan alleges that he was employed by the third defendant (2016 - 2017) and entities insured by the first and second defendants, namely, A to Z Stones Pty Ltd (2014 ‑ 2015) and Rock Solid Surfaces Pty Ltd (2007 - 2011). The first, second and third defendants will be referred to, together, as 'the Previous Employers'.
[1] Fifth Defendant's Defence, 12 July 2021, par 5. The fifth defendant is Malyta Pty Ltd. At all material times, the fifth Defendant traded as 'The Maker': Statement of Agreed Facts, 24 May 2023 (SAF), par 4.
While working for The Maker, Mr Ligutan made a claim for compensation pursuant to the Workers' Compensation and Injury Management Act 1981 (WA) (the 1981 Act). The claim form nominated 'The Maker' as 'the employer', 'silicosis' as the 'injury or disease' and '12 August 2019' as the date of the 'occurrence' or 'diagnosis'.[2] Silicosis is a form of pneumoconiosis.[3]
[2] See the 'workers' compensation claim form' dated 22 October 2019 in the Book of Evidence filed 29 September 2023 (BOE), pages 1 - 2.
[3] SAF, par 6.
Subsequently, Mr Ligutan commenced this action against The Maker and the Previous Employers, alleging that his silicosis was an injury that was a foreseeable consequence of the breach of the duty of care owed to him by each of those defendants.[4] His claim is for 'loss, damage and incurred expenses' by reason of that injury.[5]
[4] Writ of Summons, 18/01/21 and Amended Writ of Summons and Statement of Claim, 13 May 2021, par 19, Papers for the Judge (PFJ), pages 22 - 32.
[5] Amended Writ of Summons and Statement of Claim, 13 May 2021, par 20, PFJ, page 30.
In addition to providing for a scheme that creates a statutory entitlement to compensation for an injury to a worker,[6] the 1981 Act, in div 2 of pt IV, imposes 'constraints on awards of common law damages'. By s 93K(4) of the 1981 Act, damages in respect of an injury can only be awarded if, first, 'the worker elects, in the manner prescribed in the regulations, to retain the right to seek damages' and, secondly, 'the Director registers the election in accordance with the regulations'.[7]
[6] 1981 Act s 18(1).
[7] 1981 Act s 93K(4)(a), s 93K(4)(b).
Mr Ligutan elected to retain the right to seek damages by submission of a form prescribed by the regulations in which he named 'The Maker' as his employer.[8] The Director registered Mr Ligutan's election on 15 July 2020, naming 'The Maker' as 'Employer'.[9] The Director has not registered an election having been made by Mr Ligutan in respect of the Previous Employers.
[8] BOE, pages 24 - 25. The form is dated 7 June 2020.
[9] BOE, page 20. Noted to be with effect from 15 July 2020.
By way of a further and alternative defence to the action, the Previous Employers have pleaded that Mr Ligutan, having made an election with respect to The Maker and not the Previous Employers and that an election having been registered in respect of The Maker and not the Previous Employers, the effect of s 93K(4) is that damages cannot be awarded against the Previous Employers. The Previous Employers contend, for that reason, the proceedings against them are incompetent.[10] On 4 March 2022, Deputy Registrar Harman made an order to the effect that this alternative defence be determined as a preliminary issue.[11]
[10] Amended Defence of First Defendant, 30 July 2021, par 12; Defence of Second Defendant to Statement of Claim Filed 13 May 2021, 8 July 2021, par 6; Amended Defence of Third Defendant, 30 July 2021, par 10.
[11] The preliminary issue was framed in the following terms, 'The question whether section 93K of the 1981 Act precludes an award of damages against (the Previous Employers) because only (The Maker) was named as the employer on the Form 34 Election lodged with the Director on 7 July 2020 and registered on 15 July 2020 be referred for hearing before a judge for determination as a preliminary issue'.
For the reasons given below, I have concluded that Mr Ligutan's failure to make an election with respect to the Previous Employers and the (consequent) absence of the registration of an election with respect to the Previous Employers, does not preclude an award of damages against the Previous Employers.
I note that, after s 421 of the Workers' Compensation and Injury Management Act 2023 (WA) (the 2023 Act) commences operation, the preliminary issue will not arise in a case to which the 2023 Act has application. Although s 421(1) of the 2023 Act is in similar terms to s 93K(4) of the 1981 Act, s 421(2) of the 2023 Act has no equivalent in the 1981 Act. Section 421(2) of the 2023 Act makes clear that a 'worker is not required to identify in an election all employers who are potentially liable to contribute to damages'.
The Law: Relevant provisions of the 1981 Act[12]
[12] Unless otherwise noted, I have considered the 1981 Act as at the date of publication of these reasons. No party suggested that amendments to the 1981 Act after events that may be relevant to the facts of this case (eg alleged injury date of 12 August 2019, registration of election date of 15 July 2020) have a bearing on the resolution of the preliminary issue.
Below, I identify, summarise and quote those provisions of the 1981 Act relevant to the determination of the preliminary issue. In Beasley v Pilbara Mining Alliance Pty Ltd [2022] WASCA 25 (Beasley), the Court of Appeal identified and described provisions of the 1981 Act relevant to the task of construction of s 93P of the 1981 Act. It has been convenient, to the extent apposite to the determination of the preliminary issue, to draw upon and supplement what was said by the Court of Appeal in Beasley [8] - [33].
The 1981 Act establishes a compulsory no fault workers' compensation insurance scheme covering the liability of employers for injuries suffered by employees in the course of their employment.[13] Part I deals with preliminary matters. It includes s 3 which sets out the purposes of the 1981 Act as follows:
[13] Beasley [8].
3.Purposes
The purposes of this Act are -
(a)to establish a workers' compensation scheme for Western Australia dealing with -
(i)compensation payable to or in respect of workers who suffer an injury; and
(ii)the management of workers' injuries in a manner directed at enabling injured workers to return to work; and
(iii)specialised retraining programs for injured workers; and
(iv)ancillary and related matters;
(b)to establish WorkCover WA to oversee the operation of the workers' compensation scheme; and
(c)to provide for the resolution of disputes under this Act; and
(d)to make provision for the hearing and determination by the dispute resolution authorities of disputes between parties involved in workers' compensation matters in a manner that is fair, just, economical, informal and quick.
Part III of the 1981 Act is headed 'Compensation'. It establishes the regime for compensating workers who suffer an 'injury'. 'Injury' has an expanded meaning as a result of the definitions of 'injury' and 'disease' in s 5 and 'pneumoconiosis' in s 33. The relevant parts of those provisions are as follows:
disease includes any physical or mental ailment, disorder, defect, or morbid condition whether of sudden or gradual development;
…
injury means -
(a)a personal injury by accident arising out of or in the course of the employment, or whilst the worker is acting under the employer's instructions; or
(b)a disease because of which an injury occurs under section 32 or 33; or
(c)a disease contracted by a worker in the course of his employment at or away from his place of employment and to which the employment was a contributing factor and contributed to a significant degree; or
(d)the recurrence, aggravation, or acceleration of any pre‑existing disease where the employment was a contributing factor to that recurrence, aggravation, or acceleration and contributed to a significant degree; or
(e)a loss of function that occurs in the circumstances mentioned in section 49,
but does not include a disease caused by stress if the stress wholly or predominantly arises from a matter mentioned in subsection (4) unless the matter is mentioned in paragraph (a) or (b) of that subsection and is unreasonable and harsh on the part of the employer;'
…
33.Pneumoconiosis, mesothelioma, lung cancer or diffuse pleural fibrosis
Where a worker is rendered less able to earn full wages by reason of suffering from, or his death is caused by -
(a)pneumoconiosis; or
(b)on and after 8 May 1970, mesothelioma; or
(c)on and after the date on which this section comes into operation, lung cancer; or
(d)on or after 19 September 2009, diffuse pleural fibrosis,
and the disease is, or was, due to the nature of any employment in which the worker was employed at any time previous to the date of being so rendered and it is shown to the satisfaction of an arbitrator that, since he was last employed in the State in any employment of that nature, the worker -
(a)has not been absent from the State for a period of, or periods aggregating, more than 6 months; or
(b)having been absent from the State for a period of, or periods aggregating, more than 6 months, has not during that period or those periods been employed in any employment of that nature,
an injury, being pneumoconiosis, mesothelioma, lung cancer or diffuse pleural fibrosis, as the case may be, of the worker occurs and this Act applies to that injury subject, however, to this Division.
Section 18 expresses the central concept on which the regime established by pt III is based and provides, in effect, if an 'injury' of a worker 'occurs', then 'the employer shall, subject to this Act, be liable to pay compensation in accordance with Schedule 1'.[14] Section 21 provides, relevantly, that an employer is liable to pay compensation under the 1981 Act from the date of incapacity resulting from injury. A worker who is either totally or partially incapacitated for work as a result of injury may be entitled to weekly payments of compensation calculated in accordance with sch 1, and a worker who has suffered a permanent impairment as a result of an injury may be entitled to a lump sum payment.[15]
[14] Beasley [10], [12].
[15] 1981 Act, see sch 1, cl 7 and s 31C.
An employee wishing to bring proceedings for recovery of compensation must serve a notice on the employer.[16] If there is more than one employer, notice may be served on any one of such employers.[17] The notice must state, in ordinary language, the cause of the injury and the date and place at which the injury occurred. The notice must also be in the prescribed form.[18]
[16] 1981 Act s 178 and s 179.
[17] 1981 Act s 179(1).
[18] Workers' Compensation and Injury Management Regulations 1982 (WA) reg 6AA.
Section 23 provides, in effect, that compensation is not payable to the extent that judgment has been obtained against the employer for damages at common law ie independently of the 1981 Act.
A claim for compensation by reason of pneumoconiosis is regulated by div 3 of pt III. By s 36, the claim will result in the convening of a specialist medical panel, known as the Industrial Diseases Medical Panel (the IDMP). The panel is required to consider and determine questions set out in s 38(1) (s 38 IDMP Determination). Compensation is recoverable from the employer who last employed the worker 'in the employment to the nature of which the disease is due', who must be given a notice and who may join earlier employers seeking a contribution to the compensation that has been paid.[19]
[19] 1981 Act s 41 and s 43.
Part IV of the 1981 Act is headed 'Civil proceedings in addition to or independent of this 1981 Act'.[20] Before referring in more detail to the provisions of pt IV relevant to the preliminary issue, an overview will be helpful:
[20] Beasley [15].
(a)The 'general' provisions in div 1 include:
•Section 86 stating that, except as expressly provided, nothing in the 1981 Act affects any liability that exists independently of the Act.
•Section 91, s 92 and s 93 on the consequences of certain outcomes of an action including, by s 92, that damages awarded in relation to a liability that exists independently of the 1981 Act and compensation under the Act are not both recoverable.
(b)Division 1a of pt IV contain 'choice of law' provisions to be applied where a worker may have a connection with more than one State. In a claim for damages in negligence against a worker's employer, the law to be applied is the law of the State in which the worker has a statutory entitlement to compensation.[21]
[21] See Di Paolo v Salta Constructions Pty Ltd [2015] VSCA 230 [14] noting that 'the provisions are an agreed scheme of uniform legislation involving all the States and the Australian Capital Territory'.
(c)Division 2 of pt IV imposes 'constraints on awards of common law damages'. Subdivision 1 contains 'preliminary provisions'. Subdivision 2 contains provisions governing causes of action that arose before s 79 of the Workers' Compensation Reform Act 2004 (WA) came into operation. Subdivision 3 contains provisions governing causes of action that arose thereafter. With effect from 12 October 2020, subdivision 4 concerns transition arrangements consequent upon the repeal of provisions that had fixed the period within which a worker was required to make an election to seek damages, ie before 'the termination day'.
(d)The 'preliminary provisions' in subdivision 1 of div 2 include:
•Section 93B, applying div 2 to the awarding of damages against a worker's employer independently of the 1981 Act (extracted below).
•Section 93C stating that, if the division applies, a court is not to award damages to a person contrary to the division (extracted below).
(e)The '2004 scheme' constraints on awards of damages in subdivision 3 of div 2 include:
•Section 93K (extracted below) providing that damages can only be awarded if the worker makes an election (s 93K Worker's Election) and the Director registers the election (s 93K Director's Registration of Election) and the Director gives notice of the s 93K Director's Registration of Election (s 93K Notice of Registration of Election).
•Section 93L (extracted below), providing that the s 93K Worker's Election and the s 93K Director's Registration of Election may only be made if the worker's degree of permanent whole of person impairment has been assessed at a minimum of 15% and the assessment has been recorded (s 93L Director's Recording of Impairment).
•By s 93P, if an election to retain damages is made, then unless certain conditions are met, the worker's entitlements to weekly payments of compensation are progressively reduced over a period of six months from the date of the election.
•Section 93R (extracted below) providing that an assessment of worker's degree of permanent whole of person impairment for the purpose of the s 93L is done in accordance with s 146A and s 146C (s 93R IDMP Assessment) resulting, under s 146H, in a certificate by an IDMP specifying the worker's degree of impairment expressed as a percentage (s 93R IDMP Certificate of Impairment) and a report. In the case of an acceleration of any pre-existing disease that was asymptomatic, there is to be no deduction from the percentage to reflect the pre-existing nature of that disease.[22]
•By s 93S, regulations may provide for the form and lodgement of the s 93K Worker's Election, the registration of the s 93K Director's Registration of Election and the recording of the s 93L Director's Recording of Impairment. The Workers' Compensation and Injury Management Regulations 1982 (WA) (the Regulations) provide that:
•The s 93K Worker's Election is made by lodging the form set out in the appendix to the Regulations (a Form 34) (reg 22(1));
•The registration of the s 93K Director's Registration of Election is done by register of the s 93K Worker's Election in a register and returning a copy of the Form 34 to the worker and the employer (reg 22(2)). By r 22(3) 'the Director may refuse to register the election if not satisfied that the worker has been properly advised of the consequences of the election';
•The recording of the s 93L Director's Recording of Impairment is done, upon written request of the worker, by recording the s 93R IDMP Certificate of Impairment in a register (reg 21).
[22] 1981 Act s 146A(4).
In the overview above, s 91, s 92 and s 93 were noted. The effect of those provisions is noted in the following paragraphs.
Section 91 provides that, if the action fails, the court may make an assessment of the worker's entitlement to compensation.[23]
[23] Beasley [66] - [84].
Section 92 concerns an action that is determined by settlement or trial. Provision is made for the worker to receive notice of the proposed quantum of damages and to have the opportunity to discontinue the action.[24] If the action proceeds to judgment or is settled by the worker's acceptance of money, by s 92(e) the worker shall not commence or continue proceedings for compensation and any compensation that has been paid to the worker will be brought to account against any damages that are payable to the worker by reason of the action being determined by a judgment or settlement.[25]
[24] 1981 Act s 92(a), s 92(d).
[25] 1981 Act s 92, s 92(b), s 92(c), s 92(f).
Section 93 is entitled 'remedies against non-employers'. It commences with an express recognition of a circumstance in which 'some person other than the employer' (called 'the defendant') has a legal liability to pay damages for an injury for which compensation is payable under the 1981 Act and states, in effect, that the worker must bring to account any damages recovered in reduction of any entitlement to compensation. By s 93(1)(b), s 93(2) - s 93(5), there is a scheme, including a right of indemnity, for the recovery of compensation paid to a worker where the worker has also been paid damages.
In the overview, it was also noted that the preliminary provision of div 2 includes s 93B and s 93C and that the '2004 scheme' constraints in subdivision 3 of div 2 include s 93K, s 93L and s 93R. It was noted that reg 22 has been prescribed for the purposes of s 93K(4)(a), s 93K(4)(b). The relevant portions of those provisions are as follows:
93B.Application of this Division
(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.
…
93C.Limit on powers of courts to award damages
If this Division applies a court is not to award damages to a person contrary to this Division.
…
93K.Constraints on awards
(1)If the liability for an incapacity resulting from the injury has been redeemed under section 67, damages are not to be awarded in respect of the injury.
(2)If a further additional sum has been allowed to the worker under clause 18A(1b) in relation to an injury that is compensable under this Act, damages are not to be awarded in respect of the injury.
(3)If the worker is participating, or has at any time participated, in a specialised retraining program established in respect of an injury that is compensable under this Act, damages are not to be awarded in respect of the injury.
(4)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)Unless the court is satisfied that the worker's degree of permanent whole of person impairment is at least 25% -
(a)the amount of damages to be awarded is to be a proportion, determined according to the severity of the injury or injuries, of the maximum amount that may be awarded; and
(b)the maximum amount of damages that may be awarded in respect of the injury or injuries is Amount A, but the maximum amount may be awarded only in a most extreme case in which the worker's degree of permanent whole of person impairment is less than 25%.
(6)Subsection (5) has effect in respect of the amount of a judgment before the operation of section 92(b).
(7)No entitlement to damages is created by subsection (5) and that subsection is subject to any other law that prevents or limits the awarding of damages.
(8)If -
(a)subsection (4) does not allow damages to be awarded in respect of the injury; or
(b)damages in respect of the injury have been awarded in accordance with subsection (5),
the employer is not liable to make any contribution under the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (the Contribution Act) in respect of damages awarded against another person in relation to the injury.
(9)If subsection (5) limits the damages that could have been awarded in respect of the injury -
(a)the contributions that the employer may be liable to make under the Contribution Act in respect of damages awarded against other persons in relation to the injury are not to exceed the damages that could have been awarded in accordance with subsection (5); and
(b)if the employer has made or been directed to make a contribution under the Contribution Act in respect of damages awarded against another person in relation to the injury, the amount of damages that may be awarded in accordance with subsection (5) is reduced by the amount of that contribution.
(10)This section applies regardless of whether the damages are awarded against one or several employers.
(11)An issue as to the amount of damages that may be awarded, is to be determined by reference to Amount A as in effect on the date on which the determination is made.
(12)In this section -
Amount A means, in relation to a financial year, the amount that section 93F(8) defines to be Amount A in relation to that financial year.
(13)The court is not bound by an agreement or assessment recorded by the Director under section 93L(2), but may admit it as evidence relevant to the worker's degree of permanent whole of person impairment.
93L.Election under s. 93K to retain right to seek damages
…
(2)A worker can only elect under section 93K(4) to retain the right to seek damages if -
(a)the worker and the employer agree -
(i)that the worker's degree of permanent whole of person impairment is at least 15%; and
(ii)as to whether or not the worker's degree of permanent whole of person impairment is at least 25%;
or
(b)the worker's degree of permanent whole of person impairment has been assessed to be a percentage that is not less than 15%,
and the Director has, at the written request of the worker, recorded that agreement or assessment in accordance with the regulations.
(3)The Director cannot, under subsection (2), record an assessment that involves a special evaluation as defined in section 146C(4) unless the Director has been given a copy of the certificate referred to in section 93N(1) on the basis of which the special evaluation was requested.
…
(5)An agreement or assessment that the Director has, at the written request of the worker, recorded in accordance with the regulations cannot be withdrawn and, after it has been recorded, another agreement or assessment as to the worker's degree of permanent whole of person impairment cannot be recorded.
(6)An election that the Director has registered in accordance with the regulations cannot be withdrawn and a subsequent election cannot be made in respect of the same injury or injuries.
(7)Subsection (5) does not prevent an agreement or assessment as to the worker's degree of permanent whole of person impairment from being made, whether before or after the commencement of court proceedings, after the Director has, at the written request of the worker, recorded an agreement or assessment in accordance with the regulations, or from being used in court proceedings.
(8)The Director may at any time rectify an error that was made in recording an agreement or assessment or registering an election.
…
93R.Some lung diseases, special provisions about
(1)If damages are sought or to be sought in respect of a disease referred to in section 33 or 34, any assessment to evaluate the worker's degree of permanent whole of person impairment resulting from the disease as described in sections 146A and 146C is to be made, not by an approved medical specialist as stated in section 146A(2), but by a medical panel constituted as described in section 36.
Workers' Compensation and Injury Management Regulations:
22.Electing to retain right to seek damages
(1)An election under section 93K(4)(a) of the Act is made by completing an election form in the form of Form 34 in Appendix I and lodging it in accordance with regulation 57.
(2)Unless under subregulation (3) the Director refuses to register the election, the Director is to -
(a)register the election in a register kept for that purpose as soon as practicable after the election form is lodged; and
(b)complete the relevant section of the election form and give a copy of it to the worker and the employer.
(3)The Director may refuse to register the election if not satisfied that the worker has been properly advised of the consequences of the election.
Parts V, VII, VIII, IX and IXA, concern, respectively, the WorkCover Western Australia Authority, medical assessments, insurance premium rates, injury management and retraining programs.
Part X concerns 'insurance', including s 160(1) stating that every employer must keep current a policy of insurance for the employer's liability to pay compensation under the 1981 Act and the employer's liability to pay damages for an injury caused to the worker by the negligence of the employer. Relevant to the Previous Employers, s 173 provides that, where a corporate employer has ceased to carry on business, a worker may pursue the same rights and remedies against the employer's insurer.
Parts XI, XIII, XIV, XV, XVI and XVIII concern, respectively, dispute resolution mechanisms in respect of claims for compensation, appeals to the District Court, offences, costs, registered agents and regulations. The regulation making power includes the power to make regulations for any matters that are required or permitted to be prescribed or, for giving effect to the 1981 Act, matters that may be necessary or convenient to be prescribed.[26]
[26] 1981 Act s 292(1)(m).
The Facts
For the purpose of the trial of the preliminary issue, the parties filed a statement of agreed facts and a book of evidence.[27]
[27] Counsel for The Maker stated (ts 53): 'The Book of Evidence can be received by you as evidence, without the need for the authors of the documents to appear to prove them. So you can read it and act on it'.
In February 2018, Mr Ligutan commenced employment as a stonemason with The Maker.
On 22 October 2019, Mr Ligutan served a notice claiming compensation on The Maker.[28] The form included the following handwritten notations (shown below as underlined) in response to printed statements or questions in the form (shown below in italics):
[28] BOE, pages 1 - 2.
Worker please complete …
DOB: 15 July 1976
Preferred language: Tagalog
Occupation: Stonemason
Date of Occurrence:[29] 12 August 2019
The most serious injury or disease caused: silicosis
When did you first seek medical attention: 12 August 2019
Was the part of the body affected by this occurrence healthy before this occurrence: Unsure
Please give details of any similar injury prior to this occurrence: N/A
Have you had any similar or related workers' compensation claims: N
[29] The word 'diagnosis' has been handwritten in an area adjacent to the printed word 'occurrence'.
Mr Ligutan nominated his 'injury or disease' as silicosis. The definition of 'injury' in s 3 incorporates, by s 33, 'pneumoconiosis' that was due to the nature of any employment at any previous time. By s 33, the 1981 Act applies to that injury, subject to div 3 of pt III on specified industrial diseases. Included in div 3 of pt III are provisions noted above that provide for the convening of an IDMP for the purposes of making a s 38 IDMP Determination. An IDMP was convened for this purpose.
On 31 March 2020, the IDMP issued a s 38 IDMP Determination in relation to Mr Ligutan's claim for compensation.[30] The determination included the following answers (shown below as underlined) in response to questions prescribed by s 38 (shown below in italics):
(a)Is, or was, the worker suffering from pneumoconiosis? Yes.
(b)If so, is or was the worker thereby less able to earn full wages? Yes.
(c)To what extent if any does, or did pneumoconiosis adversely affect the worker's ability to undertake physical effort? Pneumoconiosis has adversely affected the worker's ability to undertake physical effort to the extent of 25%.
(d)What other, if any, disease or physical condition is, or was, contributing to the worker's being less able to earn full wages, or death and to what extent? Adjustment disorder, shoulder injury - extent unknown.
(e)Is, or was, the worker fit for work? If so what level - light, moderate or heavy? He is fit for moderate work.
[30] BOE, page 7.
The IDMP also published reasons for the s 38 IDMP Determination that included the following:[31]
History given by the worker: Mr Ligutan has worked in the stonemason industry since 1998. Mr Ligutan moved to Australia in 2007, working for various stone companies including Solid Surface (2007-2011), self‑employed (2011-2013), Universal Stone (2014-2016), A to Z stone (2016-2017) and The Maker (2019-current).
[31] BOE, pages 3 - 5.
The IDMP, convened for the purpose of making a s 38 IDMP Determination of Mr Ligutan, also completed a s 93R IDMP Assessment of him.
On 31 March 2020, the IDMP issued a s 93R IDMP Certificate of Impairment that included the following:[32]
Injury: Silicosis
Employer's/Insured detail: Malyta Pty Ltd
We certify that having assessed the above worker on 31 March 2020 in accordance with section 93R, the degree of permanent whole of person impairment is 25%
Disease: Pneumoconiosis - 25% degree of permanent impairment.
[32] BOE, page 6.
The IDMP also published, relevant to the certificate, a report that included the following:[33]
Impairment rating and rationale: The American Medical Association Guides to the Evaluation of Permanent Impairment 5th Edition (AMA 5) applies to the assessment, subject to the modifications set out by the WorkCover WA Guides for the Evaluation of Permanent Impairment. Statement as to the reasons for arriving at the calculation of the worker's degree of permanent impairment: Permanent impairment was assessed using the AMA 5 Guides. … [R]esulting in 25% permanent impairment.
[33] BOE, pages 8 - 10.
On 15 April 2020, by a Form 3A Insurer's Notice that Liability is Accepted, QBE Insurance (Australia) Ltd stated that liability is accepted for Mr Ligutan's claim for worker's compensation at a weekly rate detailed in the notice.[34]
[34] BOE, pages 14 - 15.
On 9 July 2020, the Director received a Form 34, signed by Mr Ligutan and annexing copies, in respect of Mr Ligutan of: a s 38 IDMP Determination and reasons; a s 93R IDMP Certificate of Impairment and reasons.[35] The form, to be referred to as the 'Ligutan Form 34 Election', included the following notations (shown below as underlined) in response to printed statements or questions in the form (shown below in italics):
[35] The Director acknowledged receipt of the form by letter: BOE, pages 20 - 21. The Form 34 appears in the BOE at pages 24 - 25. The SAF refer to the Form 34 Election being submitted on 7 June 2020 (par 11). The Director's letter refers to the Form 34 as dated 7 June 2020. However, the copy of the Form 34 at BOE page 25 has the handwriting '07/07/20' alongside the 'signature of worker'. Nothing turns on whether the Ligutan Form 34 Election was dated 7 June 2020 or 7 July 2020.
Form 34 - Election to Retain Right to Seek Damages
Worker's Details
Surname Ligutan … Occupation Stonemason … WorkCover claim number PE2169000 …
Employer's details
Name The Maker …
Insurer's details
Name QBE …
Injury Details
Description of Injury Silicosis Date injury occurred 12 August 2019 Date the claim, if any, for compensation by way of weekly payments was made on employer 23 October 2019 Claim number given by insurer (if known) PE2169000. Degree of permanent whole of person impairment 25%
WARNING
An election cannot be withdrawn after the Director registers it and a subsequent election cannot be made in respect of the same injury or injuries (see section 93L(6) of the Act). Registration of an election may affect your entitlement to statutory compensation under the Workers' Compensation and Injury Management Act 1981.
Advice of consequences of election
I have been properly advised of the consequences of making this election.
Signature of worker [Mr Ligutan's signature] 070720
On 15 July 2020, the Director wrote to Mr Ligutan and The Maker giving notice that a s 93L Director's Recording of Impairment had been completed in accordance with s 93L(2) and that his 'election to retain the right to seek damages had been registered with effect from 15 July 2020'. The registration of the election will be referred to as the s 93K Ligutan Registration of Election and the letter giving notice of that fact will be referred to as the s 93K Ligutan Notice of Registration of Election.
On 18 August 2020, the Director received three further Form 34s, one in respect of each of the Previous Employers.[36] The forms are each in identical terms to the Ligutan Form 34 Election save for one detail. Each one of the three forms names one of the Previous Employers under the heading 'Employer's details'. The result was three Form 34s, each with different employer details:
Employer's details
Name A to Z Stones Pty Ltd …
Employer's details
Name Rock Solid Surfaces Pty Ltd …
Employer's details
Name Universal Stone (WA) Pty Ltd …
[36] The Director acknowledged receipt of the forms by letter: BOE, page 33. The Form 34s appear in the BOE, pages 27 - 32.
On 21 August 2020, the Director wrote to Mr Ligutan, declining to register any of the forms concerning the Previous Employers and, consequently, not giving a s 93K Director's Registration of Election in respect of any of those forms.[37]
[37] BOE, page 33.
The Director made three observations in her letter of 21 August 2020.
First, the s 93K Ligutan Registration of Election on 15 July 2020 was in respect of a s 93L Director's Recording of Impairment for an injury of 12 August 2019 and the Previous Employers forms concerned the same injury.
Secondly, the effect of s 93L(5) is that the s 93L Director's Recording of Impairment on 15 July 2020 in relation to The Maker, precludes a further recording of impairment in respect of the same injury.
Thirdly, the effect of s 93L(6) is that the s 93K Ligutan Registration of Election on 15 July 2020, precludes a further s 93K Worker's Election in respect of the same injury.
Submissions of Mr Ligutan and The Maker
Mr Ligutan and The Maker contend that, the requirements of s 93K(4)(a), s 93K(4)(b) and s 93K(4)(c) having been satisfied by respectively, the Ligutan Form 34 Election, the s 93K Ligutan Registration of Election and s 93K Ligutan Notice of Registration of Election, there is nothing in the ordinary meaning of the words of s 93K that precludes an award of damages against the Previous Employers. Emphasis is placed upon three features of s 93K(4).
First, the opening words of s 94K(4), in providing that 'damages in respect of an injury can only be awarded' if the conditions that follow are satisfied do not, of themselves, preclude an award of damages in respect of an injury against any employer.[38] The extended definition of the word 'injury' found in s 33 expressly contemplates a disease due to the nature of any employment in which the worker was employed at any previous time to the date of being rendered less able to earn full wages.
[38] Plaintiff's Submissions Addressing Preliminary Question, 27 October 2023 (PL Written Submissions or LWS), par 22; Fifth Defendant's Outline of Submissions for trial of Preliminary Issue, 6 November 2023 (Maker Written Submissions or MWS), pars 47 - 52.
Secondly, the constraint found in s 94K(4)(a) concerns the making of an election with respect to a 'right to seek damages'. The emphasised words reveal that what is preserved by a valid election is a right in respect of any cause of action for the remedy of damages and not a right in respect of a particular employer. There is no grammatical reason or other reason, to exclude any employer from exposure to liability arising from a worker, after a valid election, exercising the right.[39] Nothing in s 94K(4) or in the Regulations, expressly or impliedly, creates an obligation upon a worker to name, in the Form 34, every employer against whom it is intended to preserve the right to damages.[40] Mr Ligutan also argues that the relevant regulation-making power in s 93S, concerned only with the form of the election of a right, would not sustain a regulation that impinged upon the content of the right to damages.[41]
[39] PL Written Submissions, par 22; Maker Written Submissions, par 58.
[40] Maker Written Submissions, pars 58 - 59, 64 - 65.
[41] PL Written Submissions, par 28. See also Maker Written Submissions, pars 64 - 65.
Thirdly, in providing for the s 93K Director's Registration of Election and the s 93K Notice of Registration of Election, s 94K(4)(b), s 94K(4)(c) expressly provide that the Director plays a role in the election vis á vis the worker. The election is 'as between the worker and the compensation scheme, not between the worker and employer'.[42] Insofar as the Director has a discretion concerning the s 93K Director's Registration of Election, r 22(3) and Form 34 confirms that the Director is concerned with the worker's appreciation of the effect of an election upon an entitlement to compensation and is not concerned with the identity of the employer against whom there may be a claim for damages.[43]
[42] PL Written Submissions, par 29.
[43] Maker Written Submissions, par 63.
Mr Ligutan and The Maker further argue that their contended interpretation on the effect of s 94K is consistent with the purpose of s 93K and pt IV. The text of s 93K is redolent of a purpose of deterring a claim for damages where a worker's 'permanent whole of person impairment' does not reach a minimum prescribed level.[44] One purpose of pt IV on civil proceedings independent of the 1981 Act, revealed by a number of provisions, includes that 'compensation and damages are not payable in respect of the same injury'.[45] Limiting the class of employer defendants is not necessary to further these identified purposes of s 93K or pt IV.
[44] PL Written Submissions, pars 25 - 27; Maker Written Submissions, pars 66.3, 66.4.
[45] PL Written Submissions, par 20; Maker Written Submissions, pars 7, 66.1, 66.2.
The Maker also contends that, on the construction of s 93K contended for by the Previous Employers, the effect of s 93P is that a worker might then be entitled to claim both damages (against the employer named on the Form 34) and to continue to receive compensation (from a different employer not named on the Form 34).[46] Such an outcome would be anomalous, given the (many) other provisions of the 1981 Act whose effect is to ensure that compensation paid to a worker is brought to account against any damages to which a worker is entitled.[47]
[46] Maker Written Submissions, pars 60 - 62.
[47] 1981 Act s 23, s 92, s 93.
Mr Ligutan and The Maker also contend that their contended interpretation on the effect of s 93K is in conformity with the established principle of preferring the construction of a statute in a manner that 'has the least intrusive effect on the common law right of the victim of a tort to sue those who caused harm'.[48]
[48] PL Written Submissions, par 14; Maker Written Submissions, pars 8 - 10.
Submissions of the Previous Employers
The Previous Employers submit that the preliminary issue is to be resolved by determining whether s 93K(4) has been satisfied in relation to the Previous Employers.[49] The relevant question is identified to be whether Mr Ligutan is entitled to maintain proceedings against the Previous Employers 'in the absence of an election as contemplated by s 93K(4) against any party other than the Maker'.[50] In answer, it is said that 's 93K (read with s 93L),[51] Form 34 and the Regulations contemplate that an election be made against each employer against which the claim for common law damages will be maintained'.[52] A separate Form 34 must be lodged for each of those employers[53] or all of the employers' names must be added to one Form 34.[54] Upon registration of the form(s), a worker can be awarded damages against one or more employers whose names appear on the form(s).
[49] Outline Submissions by First, Second and Third Defendants, 2 November 2023 (PE Written Submissions), par 8.
[50] PE Written Submissions, par 24.
[51] PE Written Submissions, pars 49 - 58.
[52] PE Written Submissions, par 45.
[53] ts 61.
[54] PE Written Submissions, par 58.
Emphasis is placed upon s 93K(10). In providing that s 93K 'applies regardless of whether the damages are awarded against one or several employers', it is suggested that the process found in s 93K(4) is to have application where a worker proposes to pursue damages against one or several employers.[55]
[55] ts 64; PE Written Submissions, pars 70 - 71.
The Previous Employers also attach significance to silicosis being a divisible injury.[56] A divisible injury is 'caused by the cumulative exposure to respirable silica with subsequent exposure increasing the severity'.[57] One consequence is that, at common law, causal 'responsibility for a divisible injury is apportioned such that an individual defendant is liable for no more than the share of the disease it caused'.[58] Two points are made.
[56] ts 65 - ts 66.
[57] PE Written Submissions, par 30.
[58] PE Written Submissions, par 32.
First, s 93L has significance for a divisible injury as a result of the extended definition of 'injury' in s 33. 'Injury' in s 93L includes silicosis due to employment at any time previous to the silicosis manifesting.[59] It follows that s 93L Director's Recording of Impairment in this case and the s 93K Ligutan Registration of Election was in respect of the 'entire disease suffered by Mr Ligutan'.[60] By s 93L(5), s 93L(6) those Director's recordings were final. The assessment in relation to Mr Ligutan and the election by Mr Ligutan could not be withdrawn or replaced. As a matter of law, whether or not one or more of the Previous Employers contributed to the silicosis, the Director is precluded from registering any further elections in relation to that injury.[61]
[59] PE Written Submissions, pars 49 - 58.
[60] PE Written Submissions, par 57.
[61] PE Written Submissions, par 49.
Second, the divisible characteristic of the injury is not reflected in the s 38 IDMP Determination whose focus is the extent to which silicosis affects the worker's ability to work. Nor is it reflected in the s 93R IDMP Assessment whose focus is a worker's degree of impairment, expressed as a percentage. However, the divisible nature of the injury was reflected in the report that informed the s 93R IDMP Certificate of Impairment insofar as the report included names of the Previous Employers and the nature of Mr Ligutan's work for them.[62]
[62] BOE, page 9.
Fixed with the consequences, at law, of an election as stated in s 93L(5), s 93L(6) and where, to his (imputed) knowledge, neither the s 38 IDMP Determination nor the s 93R IDMP Assessment was relevant to his common law rights, it was incumbent upon Mr Ligutan, to make a s 93K Worker's Election against all employers or to undertake his own investigations as to which of the Previous Employers he may wish to make a claim for damages and name them on a Form 34.[63]
[63] PE Written Submissions, par 34.
The practicality of the last mentioned suggestion is demonstrated by the Previous Employers having initiated an investigation into Mr Ligutan's injury, with the result that, by a written report dated 25 March 2021, a respiratory physician made a diagnosis of 'chronic silicosis'.[64] The diagnosis was made on the basis of Mr Ligutan's work as a stonemason since 1997 and an opinion was offered on the contribution of each period of employment to Mr Ligutan's silicosis.[65]
[64] BOE, pages 34 - 47.
[65] BOE, pages 10, 12.
The Previous Employers argue that their contended interpretation on the effect of s 93K is not inconsistent with the evident purpose s 93K and s 93L, constraining a worker's right to damages to the extent of contemplating that a worker will make an informed decision as to choosing between compensation or damages and, if damages, as to which employer(s) to pursue.[66] This construction is supported by the worker's obligation, in Form 34, to nominate the employer's name and details and the obligation of the Director to give notice of the s 93K Director's Registration of Election to the employer.[67] The construction is also supported by avoiding the likely unintended result of one employer (eg The Maker) having the advantage of early notice of a claim of damages, compared to other employers (eg the Previous Employers).[68]
[66] ts 61.
[67] ts 63, ts 64. The obligation of the Director is in r 22(2)(b).
[68] ts 71 - ts 73.
If Mr Ligutan had made elections contemporaneously against The Maker and the Previous Employers on the same Form 34 (or used multiple forms), the resulting s 93K Director's Registration of Election would have been in respect of The Maker and the Previous Employers.[69] As a result of s 93L(5), s 93L(6), the failure of Mr Ligutan to comply with s 93K in relation to the Previous Employers cannot now be cured.
[69] PE Written Submissions, par 58.
Analysis
Mr Ligutan seeks common law damages against The Maker and the Previous Employers. Adopting the terminology used in s 93B(1), Mr Ligutan alleges damage 'in respect of any injury suffered by a worker' caused by the negligence of his employers and that 'compensation has been paid or is payable in respect of the injury'. It follows that div 2 of pt IV, entitled 'constraints on awards of common law damages' applies to the awarding of damages in Mr Ligutan's action. Division 2 of pt IV includes s 93K and s 93L.
The relevant facts may be shortly stated. Before this action commenced, Mr Ligutan had 'elected in the manner prescribed by the Regulations, to retain the right to seek damages' when, pursuant to s 93K(4)(a), he completed and lodged the Ligutan Form 34 Election. The form did not contain the names of any of the Previous Employers. No further Form 34 was lodged and no registration of election of any of the Previous Employers occurred before the s 93K Ligutan Registration of Election on 15 July 2020.
The preliminary issue is resolved by determining whether a s 93K Worker's Election and a resulting s 93K Director's Registration of Election operate as an election to retain the right to seek damages against all employers or operate as an election against the employer named on a Form 34.
It is necessary to start with the text of s 93K(4)(a), s 93K(4)(b):[70]
93K.Constraints on awards
…
(4)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 …
[70] SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362, 374 [37] (Gaegler J): 'The task of construction begins, as it ends, with the statutory text. But the statutory text from beginning to end is construed in context, and an understanding of context has utility "if, and in so far as, it assists in fixing the meaning of the statutory text"' (citations omitted).
The provision must be read with s 93L. By s 93L(2), the election cannot take place before a s 93L Director's Recording of Impairment of not less than 15% and, upon a recording having been made, by s 93L(5) another assessment cannot be recorded. By s 93L(6), upon a s 93K Director's Registration of Election having been made, a subsequent election cannot be made in respect of the same injury.
Section 93K(4)(a) prescribes the manner in which a worker, by an election, retains the right to seek damages caused by negligence of an employer. The content of the 'right to seek damages' that is retained is not expressed in s 93K(4)(a) to be subject to any limitation.[71] However, retaining of the 'right' will only be achieved if the worker follows the manner of election prescribed by the regulations.
[71] The limitation found in the chapeau to s 93K(4) ('damages in respect of an injury') is discussed below.
Subsection 93K(4)(a) is seen to comprise a main clause ('the worker elects … to retain the right to seek the damages') and a subordinate adverbial clause ('in the manner prescribed in the regulations').
The subject of the main clause in s 93K(4)(a) is the retention of the 'right to seek damages'. The subject is not expressed to be retention of the right to seek damages as against an employer.
The subject of the subordinate clause in s 93K(4)(a) is the 'manner' in which the right to seek damages is able to be retained ie as prescribed by the Regulations. The subject is not expressed to be in the manner prescribed by the Regulations for seeking damages against an employer.
Regulation 22(1) does not contemplate multiple forms. It provides for the making of 'an election' by 'completing an election form in the form of Form 34' and lodging 'it' (my emphasis).
Form 34 does not contemplate the naming of multiple employers. The worker is required to nominate 'Employer's Details'. The location of the apostrophe 's' and the noun possession grammar rule suggest that the name of one employer only is required.
Although the compensation scheme is separate and distinct from civil proceedings independent of the 1981 Act, there are textual 'links' including as described above s 91, s 92 and s 93. One 'link' arises because of s 93B(1). The constraints on the awards of common law damages to a worker found in s 93K apply in respect of an injury caused by an employer's negligence if compensation is paid or is payable. In the case of silicosis, by s 41(1) compensation is recoverable from the employer who last employed the worker in the employment to which the disease was due.
In the case of Mr Ligutan, intending to make an election with respect to a right to seek damages in respect of silicosis, a form requesting the name of an employer, is a request for the name of the employer from whom, as a result of his injury, 'compensation is paid or payable'. For Mr Ligutan, as a result of s 41(1), 'compensation is paid or payable' by 'The Maker' and not by any of the Previous Employers. In my view, the Ligutan Form 34 Election was made in conformity with s 93K(4)(a), r 22 and Form 34. No evidence was offered for a faint suggestion from the Previous Employers that r 22 and Form 34 had, by customary usage of workers and the Director, acquired a 'particular meaning' that is different from the ordinary meaning.[72]
[72] ts 61; D Pearce, Statutory Interpretation in Australia (9th ed, 2019), 4.28.
I conclude that the ordinary meaning of the text comprising the subject matter of the main clause and the subordinate clauses of s 93K(4)(a) and the text comprising reg 22 and Form 34 do not contain any express limitation on the 'right to seek damages' of a worker. For the following reasons, examination of the context in which s 93K(4)(a) appears and the purpose of the 1981 Act do not reveal any implied limitation upon the right to seek damages preserved by an election in accordance with s 93K(4).[73]
[73] Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531 [65] - [66].
First, the immediate context to s 94K(4)(a) includes the chapeau of s 93K(4) and each of s 93K(4)(b), s 93K(4)(c). The right to seek damages is subject to only one limitation in the chapeau of s 93K(4), namely, the right is one concerning the awarding of 'damages in respect of an injury'. By s 33, the term injury includes silicosis due to employment at any time previous to the injury rendering the worker less able to earn full wages. The chapeau to s 93K(4), reveals that any 'constraints in awards' in 93K(4), is upon awards of damages that, by s 33, it is expressly contemplated may include an employer at a time previous to the employer at the time that the injury became manifest. The role of the Director in registering an election (s 93K(4)(b)) and providing for court proceedings after registration of the election (s 93K(4)(c)) does not imply any limitation on the right found in s 93K(4)(a).
Secondly, the context to s 94K(4)(a) revealed by s 94(4)(d), s 94(5), s 94(6), s 94(7), s 94(9) and s 93L(2) is that the 'evident legislative purpose of the constraints on the award of common law damages (found in div 2 of pt IV) is to restrict damages and thereby ensure the availability of insurance cover at reasonable rates'.[74]
[74] Beasley [15] citing: Dosset v TKJ Nominees Pty Ltd [2003] HCA 69; (2003) 218 CLR 1 [71] (Kirby J); Armet v CFC Consolidated Pty Ltd [2019] WASCA 165 [105].
The purpose of restricting damages is revealed by s 93L(2), and s 93K(4)(d), s 93K(5). This purpose is not promoted by s 93K(4)(a) being construed so as to require a worker to elect to retain the right to damages against all employers against whom a claim for damages may be made. Section 93L(2) has the effect of providing that a worker is unable to make a s 93K Worker's Election without first submitting to a process that results in the s 93L Director's Recording of Impairment of at least 15%. Section 93K(4)(d) provides for no award of damages unless the court is satisfied of at least a degree of impairment of 15%. Section s 93K(5) provides for limits upon the award of damages unless the court is satisfied of at least a degree of impairment of 25%.
Thirdly, s 93K(8) provides for an 'employer shield' against a Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA) (Contribution Act) claim by a non-employer in cases where the plaintiff is a worker and s 93K(4) does not allow damages. By implication, confirmed by s 93(1), Contribution Act claims by a non-employer against an employer may be made in a case where s 93K(4) does allow a worker to claim damages. In either case, it is not necessary for the operation of s 93K(8) to construe s 93K(4)(a) as containing any limitation. In oral submissions, the Previous Employers place reliance upon statements concerning s 93K(8) that appear in the judgment of Deputy Registrar Harman in Brinkley v P & O Trans Australia WA Pty Ltd [2009] WADC 16.[75] However, the case is authority for no more than the statement that appears in the first sentence of this paragraph.[76]
[75] ts 68.
[76] PE Written Submissions, par 25, footnote 8.
Fourthly, s 93K(10) provides that s 93K applies 'regardless of whether the damages are awarded against one or several employers'. Section 93K(10) is expressed in the past tense. The provision has 'work to do' after damages have been awarded against several employers, notably in the calculation of maximum amount of damages where the worker's degree of whole of permanent whole of person impairment is less than 25% (s 93K(5), s 93K(8), s 93K(9)). I do not agree with the submission of the Previous Employers that this provision also has 'work to do' by qualifying the subject of the main clause of s 93K(4)(a) such that the main clause may be read as, 'the worker elects … to retain the right to seek the damages against each of one or several employers'. Telling against this use of s 93K(10) is that s 93K(4) is expressed in the present tense as applying before damages can be awarded. Section 93K(10) confirms that s 93K has been drafted in a context where, notwithstanding that an action by a worker against several employers was contemplated, the subject of the main clause of s 93K(4)(a) omits a requirement to specify those several employers.
Fifthly, I have assessed the consequences for an employer, not named in a s 93K Director's Registration of Election, discovering, on service of a writ for damages, of the existence of the plaintiff worker and of an election, at an earlier date, in respect of the plaintiff worker's injury: '[A] Court is entitled to pay the Legislature the not excessive compliment of assuming that it intended to enact sense and not nonsense'.[77]
[77] Hall v Jones (1942) 42 SR (NSW) 203, 208 (Jordan CJ) and see D Pearce, Statutory Interpretation in Australia (9th ed, 2019), 2.57 - 2.60.
Section 94L(5), s 94L(6), provides for a 'one election for one injury' regime. Section 93P provides for the effect of s 93K Director's Registration of Election on the amount of a worker's weekly payment of compensation if the worker's degree of permanent whole of person impairment is less than 25%. In precluding a worker from increasing an assessment of impairment, over time, to 25% or higher, s 94L(5), s 94L(6) and s 93P serve to compliment the purpose of s 93K(4) of placing limits on the opportunities to make a claim for small amounts of damages. The 'one election for one injury' regime in s 94L(5), s 94L(6) applies whether the injury arose from one employer or multiple employers. It is not nonsense to interpret s 94L(5), s 94L(6) as serving no purpose other than to limit the opportunities to make a claim for small amounts of damages.
Regulation 22(2)(b) provides for the Director to give a s 93K Notice of Registration of Election. It may be accepted that an employer, with notice of the worker's election from the date of the s 93K Notice of Registration of Election, may commence investigations of the claim at an earlier date than an employer who does not receive notice of the action until service of a writ.[78] I would not characterise this outcome as nonsense. Each employer may plead, if applicable, the relevant limitation period by way of defence. In any event, there is a conceptual difficulty with taking account of the manner in which r 22 operates for the purposes of interpreting s 94K(4)(a). As a general rule it is impermissible to draw upon the terms of delegated legislation in aid of the construction of an enabling Act.[79]
[78] ts 73.
[79] D Pearce, Statutory Interpretation in Australia (9th ed, 2019), 3.48 - 3.49.
Conclusion
I have concluded that the Ligutan Form 34 Election and the s 93K Ligutan Registration of Election do not preclude an award of damages against the Previous Employers. I will hear from the parties on the form of order that is appropriate to give effect to this conclusion.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
SC
Associate to Judge Flynn
21 DECEMBER 2023
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