Mokta v Metro Meat International Ltd

[2005] WASCA 143

MOKTA -v- METRO MEAT INTERNATIONAL LTD [2005] WASCA 143

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASCA 143
Court:	THE COURT OF APPEAL (WA)
Case No:	FUL:63/2004	Heard:	16 JUNE 2005
Coram:	STEYTLER P WHEELER JA PULLIN JA	Delivered:	5/08/05
No of pages:	22	Judgment Part:	1 of 1
Result:	Appeals dismissed
Category:	A
PDF Version

Parties:	JEWITA MOKTA METRO MEAT INTERNATIONAL LTD (ACN 061 785 475)
Catchwords:	Workers' compensation Definition of "disability" Whether there was a disability Whether compensation was "payable"
Legislation:	Workers' Compensation (Common Law Proceedings) Act 2004 (WA), s 7 Workers' Compensation and Injury Management Act 1981 (WA), s 5, s 64, s 84I, s 93B, s 93C, s 93E Workers' Compensation and Rehabilitation Amendment Act 1993 (WA), s 29 Workers' Compensation and Rehabilitation Amendment Act 1999 (WA)
Case References:	Allianz Insurance Ltd v GSF Australia Pty Ltd (2005) 215 ALR 385 Chappel v Hart (1998) 195 CLR 232 Coombs v Bahama Palm Trading Pty Ltd (1991) ASC 56-097 Ericsson Pty Ltd v Popovski (2000) 1 VR 260 Favelle Mort Ltd v Murray (1976) 133 CLR 580 Fenton v J Thorley & Co Ltd [1903] AC 443 Henville v Walker (2001) 206 CLR 459 Hetherington v Amalgamated Collieries of WA Ltd (1939) 62 CLR 317 Janssen v Commonwealth of Australia (1994) 2 Qd R 596 Kanowna Belle Goldmines v Feierabend [2003] WASCA 246 Mealing v P Chand (2003) 57 NSWLR 305 Mokta v Metro Meat International Limited [2004] WADC 78 Popovski v Ericsson Pty Ltd [1998] VSC 61 Re Monger; Ex parte Cross [2004] WASCA 176 Re Monger; Ex parte Velsberry Pty Ltd [2003] WASCA 9 State of Western Australia v Sucy Mathai, unreported; SCt of WA; Library No 6960; 4 December 1987 Turner v Kowloon Holdings Pty Ltd [2003] WASCA 276 Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 Western Australia v Watson [1990] WAR 248 Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310 Anderson v Princess Margaret Hospital, unreported; CM­132/00; 19 January 2001 Ansett Transport Industries (Operations) Pty Ltd v Srdic (1982) 66 FLR 41 Australian Casualty Co Ltd v Federico (1986) 160 CLR 513 Boehm v Deleuil [2005] WADC 55 Dunn v Pain (1991) 57 SASR 133 Dzonlagic v The Mattress Renovators Perth Pty Ltd, unreported; CM­129/00; 24 November 2000 G R E Insurance v Bristile Ltd (1991) 5 WAR 440 Hughes v Minister for Health [1999] WASCA 131 Ilievska­Dieva v SGIO Insurance Ltd [2000] WASCA 161 Jacob v BHP Iron Ore, unreported; CM­147/00; 9 February 2001 Kavanagh v Commonwealth (1960) 103 CLR 547 Kuligowski v Metrobus (2004) 78 ALJR 1031 Lyszkowicz v Colin Earnshaw Homes Pty Ltd [2002] WASCA 205 Main roads WA v Latta, unreported; CM­82/96; 4 February 1997 March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 McLean v Bell (1932) 147 LT 262 National Insurance Company of New Zealand Ltd v Espagne (1961) 105 CLR 569 Orica Ltd v CGU Insurance Ltd (2003) 59 NSWLR 14 Parker v St Bartholomews House Inc [2003] WADC 44 Peacock v Commonwealth Trading Bank of Australia [1979] 2 NSWLR 412 Public Trustee (WA) v State Energy Commission (1979) 142 CLR 211 Rasmussen Green Holdings Ltd, unreported; CM­97/00; 23 January 2001 Re Welsford and Commonwealth Banking Corporation (1984) 5 ALD N570 Selvage v Burrell & Sons [1921] 1 KB 355 Tarr v BHP Iron Ore, unreported; CM­182/00; 28 May 2001 The Commonwealth v Hornsby (1960) 103 CLR 588 The Commonwealth v Ockenden (1958) 99 CLR 215 Thomas v Arimco Mining Pty Ltd [2000] WADC 150 Transfield Pty Ltd v Rawstron [2005] WASCA 78 WA Electoral Commission v Nelson, unreported; CM­33/94; 26 July 1994 Zdradkovic v Regal Cement & Sales Pty Ltd [2004] WADC 206

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : MOKTA -v- METRO MEAT INTERNATIONAL LTD [2005] WASCA 143 CORAM : STEYTLER P

WHEELER JA
PULLIN JA

HEARD : 16 JUNE 2005 DELIVERED : 5 AUGUST 2005 FILE NO/S : FUL 63 of 2004

CIV 2020 of 2001

BETWEEN : JEWITA MOKTA

Appellant (Plaintiff)

AND

METRO MEAT INTERNATIONAL LTD (ACN 061 785 475)
Respondent (Defendant)

(Page 2)

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : NISBET DCJ

Citation : [2004] WADC 78

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : H H JACKSON DCJ

File No : CIV 16 of 2000

Catchwords:

Workers' compensation - Definition of "disability" - Whether there was a disability - Whether compensation was "payable"

Legislation:

Workers' Compensation (Common Law Proceedings) Act 2004 (WA), s 7

Workers' Compensation and Injury Management Act 1981 (WA), s 5, s 64, s 84I, s 93B, s 93C, s 93E
Workers' Compensation and Rehabilitation Amendment Act 1993 (WA), s 29
Workers' Compensation and Rehabilitation Amendment Act 1999 (WA)

Result:

Appeals dismissed

Category: A

(Page 3)

Representation:

Counsel:

Appellant (Plaintiff) : Mr B L Nugawela
Respondent (Defendant) : Mr G R Hancy

Solicitors:

Appellant (Plaintiff) : Friedman Lurie Singh & D'Angelo
Respondent (Defendant) : D G Price & Co

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

Allianz Insurance Ltd v GSF Australia Pty Ltd (2005) 215 ALR 385
Chappel v Hart (1998) 195 CLR 232
Coombs v Bahama Palm Trading Pty Ltd (1991) ASC 56-097
Dossett v TKJ Nominees Pty Ltd (2003) 202 ALR 428
Ericsson Pty Ltd v Popovski (2000) 1 VR 260
Favelle Mort Ltd v Murray (1976) 133 CLR 580
Fenton v J Thorley & Co Ltd [1903] AC 443
Henville v Walker (2001) 206 CLR 459
Hetherington v Amalgamated Collieries of WA Ltd (1939) 62 CLR 317
Janssen v Commonwealth of Australia (1994) 2 Qd R 596
Kanowna Belle Goldmines v Feierabend [2003] WASCA 246
Mealing v P Chand (2003) 57 NSWLR 305
Mokta v Metro Meat International Limited [2004] WADC 78
Popovski v Ericsson Pty Ltd [1998] VSC 61
Re Monger; Ex parte Cross [2004] WASCA 176
Re Monger; Ex parte Velsberry Pty Ltd [2003] WASCA 9
State of Western Australia v Sucy Mathai, unreported; SCt of WA; Library No 6960; 4 December 1987
Turner v Kowloon Holdings Pty Ltd [2003] WASCA 276
Wardley Australia Ltd v Western Australia (1992) 175 CLR 514
Western Australia v Watson [1990] WAR 248
Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310



(Page 4)

Case(s) also cited:

Anderson v Princess Margaret Hospital, unreported; CM­132/00; 19 January 2001
Ansett Transport Industries (Operations) Pty Ltd v Srdic (1982) 66 FLR 41
Australian Casualty Co Ltd v Federico (1986) 160 CLR 513
Boehm v Deleuil [2005] WADC 55
Dunn v Pain (1991) 57 SASR 133
Dzonlagic v The Mattress Renovators Perth Pty Ltd, unreported; CM­129/00; 24 November 2000
G R E Insurance v Bristile Ltd (1991) 5 WAR 440
Hughes v Minister for Health [1999] WASCA 131
Ilievska­Dieva v SGIO Insurance Ltd [2000] WASCA 161
Jacob v BHP Iron Ore, unreported; CM­147/00; 9 February 2001
Kavanagh v Commonwealth (1960) 103 CLR 547
Kuligowski v Metrobus (2004) 78 ALJR 1031
Lyszkowicz v Colin Earnshaw Homes Pty Ltd [2002] WASCA 205
Main roads WA v Latta, unreported; CM­82/96; 4 February 1997
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506
McLean v Bell (1932) 147 LT 262
National Insurance Company of New Zealand Ltd v Espagne (1961) 105 CLR 569
Orica Ltd v CGU Insurance Ltd (2003) 59 NSWLR 14
Parker v St Bartholomews House Inc [2003] WADC 44
Peacock v Commonwealth Trading Bank of Australia [1979] 2 NSWLR 412
Public Trustee (WA) v State Energy Commission (1979) 142 CLR 211
Rasmussen Green Holdings Ltd, unreported; CM­97/00; 23 January 2001
Re Welsford and Commonwealth Banking Corporation (1984) 5 ALD N570
Selvage v Burrell & Sons [1921] 1 KB 355
Tarr v BHP Iron Ore, unreported; CM­182/00; 28 May 2001
The Commonwealth v Hornsby (1960) 103 CLR 588
The Commonwealth v Ockenden (1958) 99 CLR 215
Thomas v Arimco Mining Pty Ltd [2000] WADC 150
Transfield Pty Ltd v Rawstron [2005] WASCA 78
WA Electoral Commission v Nelson, unreported; CM­33/94; 26 July 1994
Zdradkovic v Regal Cement & Sales Pty Ltd [2004] WADC 206


(Page 5)

1 STEYTLER P: I have read the judgment of Pullin JA. I agree with it and with his conclusions. There is nothing I wish to add.

2 WHEELER JA: I have had the advantage of reading in draft the reasons for decision of Pullin JA. I agree with those reasons and have nothing to add.

3 PULLIN JA: There are two appeals to be determined. One is against the judgment of Nisbet DCJ delivered on 4 May 2004 (Mokta v Metro Meat International Limited[2004] WADC 78). The other is against the judgment of H H Jackson DCJ delivered on 27 June 2001.

4 The proceedings in the District Court which produced the two interlocutory judgments were proceedings in which the appellant sued the respondent for common law damages. The statement of claim reads:

"2. In the course of employment with the Defendant:

2.1 the Plaintiff was undertaking work in the Defendant's premises at their Katanning processing plant;

2.2 to carry out the work, the Plaintiff had to:


(a) lift and throw heavy boxes of meat and meat carcasses;

(b) the boxes and carcasses weighed in excess of 20 kgs each;

(c) the Plaintiff was required to work at a very fast pace, repetitively lifting and throwing the boxes of meat and carcasses ('work');


2.3 as a result of performing the abovementioned work, through gradual onset, the Plaintiff sustained injury on or about 5 November 1996 to her neck and left upper limb;

2.4 the Plaintiff continued to work with the Defendant although taking time off intermittently from then through to approximately 6 May 1998 when her symptoms were aggravated to the extent that she

(Page 6)

had to cease employment with the Defendant ('the incident').

3. The incident was caused by the negligence of the Defendant, its servants or agents.

3.1 The Defendant, its servants or agents were negligent in failing to ensure that the risks associated with manual handling were controlled in that the Defendant failed to: …

3.2 failing to assess that the manual handling task involved a risk of injury in that the Plaintiff was required to repetitively lift heavy boxes of meat and carcasses;

…

3.6 allowing, permitting, requiring the Plaintiff to undertake the work at a repetitive fast pace without adequate support facilities, assistance and properly adjusted work equipment/stations;

…


5. Further or in the further alternative, the incident was caused by the Defendant's breach of its contract of employment with the Plaintiff resulting in loss to the Plaintiff.

…

6. In the incident, the Plaintiff was injured and has required and will require treatment. The Plaintiff has sustained residual disabilities and has suffered and will suffer pain and suffering and loss of enjoyment of life.

6.1 PARTICULARS OF INJURIES/SYMPTOMS

(a) Soft tissue injury to the cervical spine.

(b) Disruption of C5/6 disc space.

(c) Acceleration and aggravation of degenerative changes in the cervical spine.

(Page 7)

…

(g) Acceleration and aggravation of degenerative change in the shoulder.

…"

5 The alleged injury occurred before the amendments to the Workers' Compensation and Injury Management Act 1981 ("Act") which were made in 1999 pursuant to the Workers' Compensation and Rehabilitation Amendment Act 1999 ("1999 Act"). I will refer to the legislation as it stood before the 1999 Act as the "former provisions", and the legislation after the 1999 amendments as the "amended provisions". The former provisions contained a division in the Act (Pt IV Div 2) imposing a constraint on the award of common law damages in relation to workers who had suffered a disability in the workplace. They prohibited the commencement of an action without the leave of the District Court. (See s 93C of the former provisions).

6 An application for leave was commenced in the District Court but it was never heard and no leave was ever granted.

7 Under the amended provisions (still in Pt IV Div 2), the constraint in s 93C of the former provisions was repealed and replaced with a constraint which prohibited a court from awarding damages unless the worker's disability was agreed or determined to be 16 per cent or more. (See s 93C and s 93E(3) and (4) of the amended provisions).

8 The appellant gave notice that she suffered a disability of more than 16 per cent. The employer disputed this and the appellant said that she would refer the dispute for determination. The appellant did not refer the dispute for a determination and no determination has been made.

9 On 7 January 2000 the appellant issued her writ with the statement of claim indorsed on it.

10 The respondent made an application to the Registrar in the District court to strike out the action. The strike-out application was dismissed by the Registrar and this came on by way of appeal before H H Jackson DCJ who decided that there was no point allowing the matter to proceed to trial if there had been no agreement or determination that the appellant suffered the required level of disability. This reasoning shows that H H Jackson DCJ proceeded on the assumption that the amended

(Page 8)

provisions applied. His Honour therefore stayed the proceedings to allow the appellant to have her level of disability determined.

11 The appellant first applied to the Directorate to determine her entitlement to compensation (about which there was a dispute). The application to the Directorate for payment of compensation was dismissed by a Review Officer on 18 July 2003. The reasons for doing so were that there had been non-compliance with s 84I (requirement to give notice) and failure to submit to a medical examination in accordance with s 64. Under s 64 there are two consequences which flow from a worker's refusal to submit to a medical examination. The first is the suspension and then cessation of a worker's right to compensation. The second is that the right to take or prosecute "any proceedings under this Act" is suspended. A notice under s 84I is required before proceedings are commenced to recover worker's compensation.

12 The claim for compensation having been dismissed, the appellant then reasoned that this meant that the constraint provisions did not apply because workers' compensation had not been "paid" and was not "payable". It is only if compensation is "paid" or is "payable" that the constraint applies. See s 93B(1) which reads:

"(1) This Division applies to the awarding of damages against a worker’s employer independently of this Act in respect of a disability suffered by a worker if -

(a) the disability 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 the disability under this Act, or would have been paid or be payable but for section 22".

This section was in the former provisions. It was unaltered by the 1999 Act.

13 Following the dismissal of the claim for compensation, the appellant applied to lift the stay ordered by H H Jackson DCJ. This came before Nisbet DCJ in 2004. Before that application was heard, the High Court had handed down its decision in Dossett v TKJ Nominees Pty Ltd (2003) 202 ALR 428. It held that s 37 of the Interpretation Act saved applications for leave to the District Court which were pending at the time the former provisions were repealed and the amended provisions inserted by the 1999 Act. In this case there was a pending application. The

(Page 9)

appellant submitted that no leave was necessary. The appellant's argument was that the common law constraint provisions did not apply because compensation had not been paid and that the Review Officer's decision meant that compensation was not "payable". As a result she submitted that the stay of the action ordered by H H Jackson DCJ should be lifted and she should be allowed to continue to trial. His Honour rejected the appellant's submission that compensation was not payable. Instead of lifting the stay, he struck out the action.

14 His reasons for doing so read as follows:

"The plaintiff argues that as no compensation has been paid to her because her claim for compensation has been dismissed by reason of her non-compliance with s 64 of the Act, and because compensation is not and can never be payable to her, because she has had her application dismissed for her failure to comply with the provisions of s 64 of the Act, then she does not come within the Division and hence does not require leave to continue with her action as is required by s 93D(4) of the Act. In effect the plaintiff argues that she can ignore the Act altogether, alternatively, engage in a token application but refuse to comply with any of the other requirements of the Act and hence deliberately disentitle herself to a determination of her right to compensation under the Act such that none becomes payable, and in consequence she is exempt from the operation of Division 2 of Part IV of the Act. This construction, urged by counsel for the plaintiff before me, was specifically disavowed by counsel for the plaintiff when this matter was argued before H H Jackson DCJ who noted in his judgment:

'Once the concessions are made as here by Ms Sorgiovanni [for the plaintiff] as to the width of the concept of compensation being "payable" and the inability of workers to avoid the constrictions of Division 2 of Part IV by not making a claim for workers' compensation, the need for compliance with those constrictions must, I think, implicitly, if not expressly, give the statutory review mechanisms power to deal with the level of disability and Re Monger; Ex parte Woodford [1999] WASC 273 makes it plain that the action, therefore, should now be stayed for that purpose.'"

(Page 10)

15 Nisbet DCJ accepted that the submission was not binding on the hearing of the application before him. He then held at [9]:

"The plaintiff submitted that to construe the provisions of s 93B(1)(b) otherwise than in accordance with her interpretation of the provision would be to ignore the phrase 'or would have been paid or be payable but for section 22.' This submission however disregards the proper construction of the words 'or is payable' which the plaintiff conceded before HH Jackson DCJ meant an inchoate liability to pay as opposed to a settled or determined liability - an interpretation of the provision with which O' Sullivan DCJ agreed: Parker v St Bartholomews House Inc [2003] WADC 44. The plaintiff cannot simply take herself out of the operation of the Act by refusing or failing to have the defendant's liability determined in accordance with its provisions."

16 His Honour then said that once that point had been reached, all that remained to be determined was what was to become of the action. He went on to say:

"… Until the High Court ruled that the former provisions of the Act applied in circumstances where no leave had been obtained as required by the (former) s 93D(4) and the cause of action (if any) had arisen before the amendments wrought by Act 34 of 1999, the Workers' Compensation and Rehabilitation Act 1999, proclaimed 5 October 1999, came into effect, it was thought the former provisions only had a continuing application where leave to institute proceedings had been given: Dossett v TKJ Nominees Pty Ltd [2001] WASCA 179. But the High Court has now explained the true position, namely that s 37(2) of the Interpretation Act 1984 applies to save the former provisions: Dossett v TKJ Nominees Pty Ltd (2003) 202 ALR 428. This being so, leave to institute these proceedings was required. It wasn't and hence HH Jackson DCJ had no power to stay the proceedings pending a determination of incapacity and should have either struck them out or stayed them permanently. As this is not a case like Thomas v Arimco Mining Pty Ltd & Anor [2000] WADC 151, the choice between permanent stay and striking out here is somewhat academic. His Honour's order, being interlocutory, can be reviewed by the court at any time: Turner v Bulletin Newspaper Co Pty Ltd & Ors (1974) 3 ALR 491 per Jacobs J at 513. As no useful purpose can be served by

(Page 11)

staying the action permanently, as opposed to striking it out, and the stay previously ordered having been made without power, I will recall the order for the stay, discharge it and strike out the action."

17 On 13 August 2004 Re Monger; Ex parte Cross [2004] WASCA 176 was handed down. Two Judges expressed obiter views (Malcolm CJ [77] and Heenan J [165]) that leave could be granted nunc pro tunc. This is a rehearing and this Court must apply the law as it now stands. If the obiter views expressed by the Chief Justice and Heenan J amounted to a correct statement of the law (a matter on which I do not have to express any opinion), that law is not any longer relevant because s 7 of the Workers' Compensation (Common Law Proceedings) Act 2004 (WA) ("Common Law Proceedings Act")now prohibits this Court or the District Court from granting leave. The Common Law Proceedings Act makes it clear that the amended provisions apply even if there had been application for leave pending when the 1999 amendments became law (providing leave had not since been granted). This provision therefore prevents workers from now relying on Dossett.

18 The end result of this convoluted history is that the premise underlying H H Jackson DCJ's decision (once wrong because of Dossett's case) has become valid again by reason of the Common Law Proceedings Act - ie the amended provisions apply as he thought; but only if the appellant suffered a disability and compensation was payable. The effect this history has on the judgments of the two District Court Judges will be considered after I deal with the two submissions made by the appellant. Both submissions were directed to demonstrating that the constraint provisions do not apply and that in consequence leave was never required under the former provisions and no determination of degree of disability was or is required under the amended provisions.

Was there a disability? Was compensation payable?

19 The appellant argued that despite the statement of claim alleging that she was injured in an "incident" at work, she did not suffer a "disability" as defined in the Act; and if she did not suffer a disability then compensation was not payable and so for that reason s 93B did not apply the constraint provisions.

20 Secondly, it was the appellant's submission that even if she did suffer a disability, compensation was not "payable" because of the Review Officer's decision refusing to order the respondent to pay compensation as a result of non-compliance with s 64(1) and s 84I. If that submission is

(Page 12)

correct, then that also would mean that s 93B did not apply the constraint provisions. (I should say at this point, with respect, that I do not agree with Nisbet J when he says that the appellant "cannot simply take herself out of the operation of the Act by refusing or failing to have … liability determined in accordance with its provisions." In my opinion it is not relevant to consider whether the appellant was "taking herself out of" the Act. The relevant question is whether the constraint provisions apply or not).

Did the appellant suffer a disability?

21 The appellant says that she did not suffer a disability at all. This is somewhat surprising given the earlier application for payment of compensation which must necessarily have been based on a contention that the appellant had suffered a disability.

22 The respondent submits that the statement of claim alleges that the appellant did suffer a disability, namely a personal injury by accident arising out of or in the course of employment. If so, the appellant suffered a disability as defined in s 5(1)(a) of the Act.

23 The word "disability" is defined in s 5(1) to read:

"(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;

(b) a disabling disease to which Part III Division 3 applies;

(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;

(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 disabling loss of function to which Part III Division 4 applies …"

24 Section 5(5) reads:

(Page 13)

"In determining whether the employment contributed, or contributed to a significant degree, to the contraction, recurrence, aggravation or acceleration of a disease for purposes of the definitions of 'disability'and 'relevant employment', the following shall be taken into account -

(a) the duration of the employment;

(b) the nature of, and particular tasks involved in, the employment;

(c) the likelihood of the contraction, recurrence, aggravation or acceleration of the disease occurring despite the employment;

(d) the existence of any hereditary factors in relation to the contraction, recurrence, aggravation or acceleration of the disease;

(e) matters affecting the worker’s health generally; and

(f) activities of the worker not related to the employment."

25 The appellant argues that she did not suffer a personal injury by accident. She points to the authorities which show that a personal injury by accident means an injury in the nature of a mishap or untoward event which was not expected or designed. See Fenton v J Thorley & Co Ltd [1903] AC 443; Hetherington v Amalgamated Collieries of WA Ltd (1939) 62 CLR 317 at 325; Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310. The appellant says that she suffered a repetitive strain injury due to her activities at work and the incapacity that resulted accelerated and aggravated degenerative changes in her cervical spine and shoulder. The appellant therefore argues that she suffered either a "disease" in its extended definition (see the definition of "disease" in s 5(1)) or a "recurrence, aggravation or acceleration of a "pre-existing disease" and that the relevant parts of the definition of "disability" are par (c) or (d). The appellant also submits that there is no overlap between the subparagraphs in the definition of disability and the disability must be either (a), (c) or (d). The reason why the appellant wants the disability to be as described in (c) or (d) will be explained a little later.

26 First I will deal with the submission about whether circumstances may fall within more than one subparagraph of the definition. It is true that the word "or" appears between (d) and (e) but this, in my opinion,

(Page 14)

merely means that the paragraphs are not accumulative. If what happened falls within any one of the paragraphs, then the appellant will have suffered a disability. The purpose of the definition of "disability" is to make sure that a worker does not miss out on workers' compensation merely because incapacity develops gradually or because it is an aggravation of a pre-existing non-work- related disease. I see no reason why it is not possible for a person to suffer a disability within the meaning of both (a) and (c): and see Kanowna Belle Goldmines v Feierabend [2003] WASCA 246 at [21]. The definition of "disease" is that it "includes any physical or mental ailment, disorder, defect, or morbid condition whether of sudden or gradual development". Thus a person may suffer a "disease" consisting of a "physical … disorder" of "sudden … development". I do not rule out the possibility that in some circumstances a disease could properly be described as having arisen from a "personal injury by accident arising out of or in the course of employment".

27 Even if that is so, the appellant submits that on the facts in this case there was no "accident". The appellant says that she suffered a repetitive strain injury, and that her incapacity did not arise as a result of an "accident" as that word is understood in this legislation.

28 The significance of this submission is that under (c) and (d) there will be no disability unless the employment was "a contributing factor" and that the employment "contributed to a significant degree" to the disease. These qualifications do not appear in par (a) of the definition of "disability".

Did employment contribute to a significant degree to a disease or recurrence?

29 The requirement in (c) and (d) of the definition of disability that employment be a contributing factor and contribute to a "significant" degree to a disease, or to a recurrence, aggravation or acceleration of a pre-existing disease, was introduced into the Act in 1993 by the Worker' Compensation and Rehabilitation Amendment Act 1993, s 29 ("the 1993 Act"). Previously the definition required that the employment contribute to a "recognisable" degree.

30 The pre-1993 definition of "disability" came under consideration in State of Western Australia v Sucy Mathai, unreported; SCt of WA; Library No 6960; 4 December 1987. Burt CJ said:

(Page 15)

"The ultimate question then is whether her 'employment with the appellant was a contributing factor to that aggravation and acceleration and contributed to a recognisable degree.' This is essentially a question of fact. And in a case, which, as found, is this case, of a disease which is in itself progressive, the question is whether the employment … hastened the progress and so was a contributing factor and in fact contributed to a recognisable degree to the aggravation or acceleration of the symptoms and hence of the disease itself."

31 Wallace J approved the Workers' Compensation Board's decision in which it referred to the meaning of the word "recognised" by reference to its definition in the "Oxford English Dictionary", ie "to know by means of some distinctive feature; to identify from knowledge or appearance or character; to perceive clearly; to realise; to take notice of in some way". Pidgeon J who was in dissent did not discuss the meaning of the word "recognisable".

32 The requirement in the New South Wales workers' compensation that employment be a "contributing factor" was considered in Favelle Mort Ltd v Murray (1976) 133 CLR 580 at 598 where Mason J said that all that need be shown is that the "employment contributes to the injury, not that it is the real, the effective or the proximate cause of the injury".

33 The year before the 1993 amendments in this State, the Victorian workers' compensation legislation was also amended to require the contribution of employment to injury to be "significant". In Popovski v Ericsson Pty Ltd [1998] VSC 61, Ashley J referred to the Second Reading Speech of the Victorian Minister upon the introduction of the 1992 legislation. The Minister said that the word "significant" "has been inserted in the definition of injury and elsewhere in the Act to emphasise the point that workplace injuries will be compensable - only if there is a strong connection between the work and the injury". Ashley J concluded that "significant" meant "a considerable amount of effect" although there may be other factors which caused the injury [61]. He also said that (at [61]):

"The adjective which Parliament chose to insert was 'significant' not 'material', nor the phrase "to a recognisable degree'. It is an adjective which implies a contribution of greater dimension than that conjured up by the other formulations, each of which has its place in the history of workers' compensation legislation. What amount or effect will be 'considerable' in any particular

(Page 16)

case will of course, be a matter for determination on the facts; the determination being ordinarily inviolable. It remains only to say that, at a practical as distinct from conceptual level, the distinction between an employment contribution exceeding de minimis and a contribution employment of a considerable amount or effect may be more apparent than real."

34 Ashley J then overturned the Magistrate's decision, who had concluded on the facts in that case that the connection between employment and injury was "tenuous". His Honour concluded that the Magistrate was compelled to conclude that on the facts the connection was "significant".

35 Ashley J's decision was overturned on appeal in Ericsson Pty Ltd v Popovski (2000) 1 VR 260 on the basis that the evidence did not imperatively require a finding that the employment was a contributing factor to the injury. The Court of Appeal did not make any express comment approving or disapproving of Ashley J's observations about the meaning of the word "significant", but Brooking JA (with whom Ormiston and Charles JJA agreed) quoted the Magistrate who had said that the "link between employment and her injury is tenuous and falls short of constituting a significant contributing factor", and then said at [18]:

"No criticism has been sought to be made in argument of his use of the word 'tenuous' to describe the link between the employment and the injury. I think his Worship was treating 'tenuous' as an antonym of the word 'significant' used in the Act. 'Insignificant' is one of the meanings of 'tenuous' given in the Shorter Oxford English Dictionary while the Oxford itself includes 'of slight importance or significance'."

36 That passage leaves open the implication that the word "significant" means no more than that the connection between employment and injury was not "insignificant". In Coombs v Bahama Palm Trading Pty Ltd (1991) ASC 56-097, Young J quoted the Supreme Court of California (at 57,024):

"Although all words may be chameleons, which reflect the colour of their environment … 'significant' has that quality more than most. It covers a spectrum ranging from 'not trivial' through 'appreciable' to 'important' and even 'momentous'."

(Page 17)

37 After the 1992 Victorian amendments, the 1993 Act was passed in this State. In the Second Reading Speech the Minister said (see "Hansard" Tuesday 21 September 1993, 4239):

The Act currently requires that diseases be compensated where work contributes to a 'recognisable' degree. The courts have ruled that 'recognisable' can be interpreted as simply the belief that work contributed to the disability. This interpretation goes beyond the intent of the Act, which is to provide compensation for work-caused injuries and diseases. The definition of disability has been amended so that a worker's employment must now be a 'significant' contributing factor to a disease, or the recurrence, aggravation or acceleration of any pre-existing injury of disease. The word 'significant' has been included in the definition of disability and elsewhere in the Bill to require a strong connection between work and the disability for workplace injuries to be compensable."

38 The Minister did not identify which "courts" had had made the rulings. He may have been referring to Mathai's case. If so, that case did not say that "recognisable" meant simply the "belief that work contributed to the disability" and the Minister was therefore announcing an intention to deal with a problem which did not exist.

39 In my opinion the word "significant" where used in the definition of "disability" means "not insignificant". In other words, the contribution must be material. In tort actions where the issue is whether an injury was caused by a negligent act or omission, the inquiry is whether the acts or omissions materially contributed to the injury or damage. See Allianz Insurance Ltd v GSF Australia Pty Ltd (2005) 215 ALR 385 at [54] and see also Henville v Walker (2001) 206 CLR 459 at [60] - [61] and [106]; Chappel v Hart (1998) 195 CLR 232 at [8] and [27]. A contribution is "material" if it is not negligible: Western Australia v Watson [1990] WAR 248 at 286. In short, my opinion is that there is no difference between a "significant" contribution and a "material" contribution.

40 Having made those observations, I now turn to what will be in issue if this matter goes to trial. The Court would, when considering the claim for damages in negligence, address the issue about whether the alleged negligent acts or omissions complained about materially contributed to the injuries or incapacity suffered by the appellant. If that were proved and if damage were also proved, then the Court would have to turn to consider whether or not the constraint provisions in the Act apply. That inquiry

(Page 18)

would be about whether there was a disability or not. If the Court found that there was personal injury caused by accident arising out of or in the course of employment, the Court would find that there was a disability and (if compensation was "payable") the Court would be prohibited from awarding damages (s 93E). Alternatively if the Court considered that there was no "accident" but there was either a "disease" or a "recurrence, aggravation or acceleration of a pre-existing disease" and that employment was "a contributing factor" and "contributed to a significant degree", then once again the Court would conclude that there was a disability and (if compensation were payable) then the constraint provisions would apply.

41 The question to be asked in relation to the negligence action (which is whether there a connection between negligent act or omission and the damage) is different from the question to be asked when considering whether there is a disability as defined in (c) or (d) which is about the connection between employment and the disease or aggravation etc of the disease.

42 If there is a possibility that the District Court could conclude on one hand that a negligent act or omission of an employer caused damage to an employee but on the other hand, conclude that employment did not contribute to the disease or aggravation of the disease to a significant degree then the point would have to be decided at trial and not on a strike-out application. Just as it is wrong to try to sort out limitation issues before trial (see Wardley Australia Ltd v Western Australia (1992) 175 CLR 514), so it would be wrong to try to sort out the issue about whether employment contributed significantly to the disease etc, before trial.

43 Having said that, however, I find it difficult to think of any examples of a case where it could be held on the one hand that an employer's negligent act or omission caused (ie materially contributed to) the recurrence or aggravation of a pre-existing condition resulting in loss, and on the other hand held that employment did not significantly contribute to the disease or recurrence etc of a pre-existing disease. Even if examples can be found, in my opinion it is inconceivable in this case that the appellant could succeed in proving the cause of action in tort alleged in the statement of claim and yet see the court conclude that there was no "disability". The appellant alleges in the statement of claim that the "injury" occurred "through gradual onset"; that it followed the carrying out of work described in par 2.2 of the statement of claim and that she continued to work for 18 months when her symptoms were "aggravated to

(Page 19)

the extent that she had to cease employment". That being so, if the action in tort is made out, the Court would in my opinion be obliged to conclude that there was a "disability" as defined in the Act. Counsel for the appellant described this as a case of repetitive strain injury resulting from the appellant's work. Two possibilities are open: either the words of Mason J in the Favelle Mort Ltd v Murray case (supra) at 599 apply, ie "… had it not been for the employment then on the probabilities the respondent would not have contracted the disease …" or the medical evidence will show that the pre-existing disease caused the injury. Either result will mean that the appellant's claim will not succeed. It follows that if the appellant proved the cause of action in tort, she would thereby also prove that she suffered a "disability".

Did the decision of the Review Officer mean that compensation was not payable?

44 If the appellant suffered a disability then she argues that because of the decision of the Review Officer that s 64 and s 84I had not been complied with, compensation was not and is not payable. Reference was made during the hearing to Janssen v Commonwealth of Australia (1994) 2 Qd R 596 where it was held that the word "payable" in s 45 of the Commonwealth Employees' Rehabilitation & Compensation Act 1988 did not mean "immediately payable" but referred to liability to pay subject to compliance with the procedural requirements in the Act which in that instance included the requirement to make a "proper claim". In my opinion that decision is of no assistance in this State because the Western Australian Act is different from the Commonwealth Act. Sections 18 and 21 of the Act have the effect that an employer comes under a "liability to pay" compensation ipso facto from the date of incapacity resulting from the disability. Once such incapacity is suffered, compensation is "payable" instanter.

45 In most cases there will be no dispute between the parties and the compensation payable will be paid without the need for any proceedings. It may be assumed that the bulk of workers' compensation payments are made without the need for any proceedings.

46 Section 84I in Pt IIIA Div 1 is concerned with dispute resolution. It provides that if there is a dispute about the liability to pay the worker, then the worker may take proceedings for recovery of compensation, but those proceedings are not maintainable unless notice of the occurrence of the disability is given in accordance with the section.

(Page 20)

47 Section 64 is in Pt III Div 5 of the Act, and that division is concerned with the "commencement, review, suspension and cessation of payment". Section 64(1) reads:

"(1) Where a worker has given notice of a disability he shall, if so required by the employer, submit himself for examination by a medical practitioner provided and paid by the employer, and, if he, without reasonable excuse, proof of which is on him, refuses to submit himself to such an examination, or in any way obstructs it, his right to compensation, and to take or prosecute any proceeding under this Act shall be suspended until such an examination has taken place, and shall cease unless he submits himself for examination within one month after being required to do so."

48 As I have already observed, this section provides two consequences. The first is the suspension and then cessation of the right to "take or prosecute any proceeding under this Act" and the second is the suspension and cessation of the "right to compensation". The part of the section providing for the suspension and then cessation of the right to "take or prosecute any proceeding", and the provision in s 84I providing that the proceedings are "not maintainable" are similar to conventional limitation provisions which bar the remedy but not the right. See Mealing v P Chand (2003) 57 NSWLR 305 at 307. Thus, the liability of the employer to make payment will continue. Compensation will be "payable" but the worker will not be able to enforce payment via proceedings.

49 Section 64(1) however, also provides for the suspension and cessation of the "right to compensation". In my opinion, that does not merely bar the remedy, but removes the right and which must, in my opinion, also relieve the employer of the correlative duty or liability to pay compensation. However, this will only operate prospectively. The liability to make payment of compensation which is payable before s 64 operates will remain. In many cases compensation will already have been paid. However, if the compensation payments have not been made the worker will not be able to enforce payment because of the prohibition on taking or prosecuting proceedings under the Act. Thus, if the appellant did suffer incapacity as a result of a disability, compensation was payable from the time of the incapacity up until the cessation of the right to future payments and that compensation would still be payable (albeit unenforceable).

(Page 21)

50 The appellant submits that this would make the words "but for s 22" in s 93B(1)(b) otiose. I do not agree. Section 22 is quite different from s 64 and s 84I. Both s 64 and s 84I are concerned with events after the disability occurs. Section 22 on the other hand affects the initial right to compensation. It provides that compensation "shall be disallowed" if the disability is attributable to the consumption of alcohol or drugs, the failure to use protective equipment or serious and wilful misconduct. In other words the section in effect removes the right to compensation from the moment of incapacity. Section 93B therefore operates where no compensation will be paid and no compensation is ever "payable" (but which would have been "payable") but for the matters listed in s 22.

51 In my opinion there is therefore no merit in the appellant's submission that if she suffered a disability, compensation is not payable because of s 64 and s 84I.

What would happen if the District Court found that the cause of action in tort was proved but also found the appellant suffered a disability?

52 If the case had been allowed to go to trial and the above conclusions were reached by the District Court, then in most cases (but not this case) the proceedings would have to be adjourned to allow the appellant to seek a determination as to the degree of disability. I say this because s 93E(3) provides that damages "can only be awarded" if it is determined that the worker has a significant disability or the degree of disability is not less than 30 per cent. In my opinion, such a determination could not be made by the District Court because the word "determined" means "determined or decided on a reference under s 93D(10) or (11)"; and see also s 84B. The appellant submitted that Re Monger; Ex parte Velsberry Pty Ltd [2003] WASCA 9 at [27] is authority for the proposition that the District Court should determine the degree of disability. In my view Velsberry's case is not authority for that proposition. Murray J at [27] merely said that in that case, the "time" for considering the application of the constraint provisions was when damages were to be awarded. (Normally the determination would take place earlier).

53 In this case the appellant will never be able to bring proceedings for a determination about disability and could therefore never obtain such a determination. This is because s 64 operates in the circumstances of this case to take away the "right … to take or prosecute any proceeding under the Act". In Turner v Kowloon Holdings Pty Ltd [2003] WASCA 276 it

(Page 22)

was held that a proceeding for a determination of that kind was a "proceeding under the Act".

54 The result is that if the findings referred to in the heading above are made by the District Court, the District Court will be prohibited from awarding damages.

The consequences

55 As a result of the foregoing, the appellant cannot gain any award of damages. If the tort action succeeded, the appellant would cause her own destruction of the proceedings. This is because, in proving that a negligent act or omission materially contributed to her injury, she will also prove that employment contributed to a significant degree to her disease; that in consequence she suffered a disability; that compensation was payable and that the constraint provisions apply. Added to that is the fact that in the particular circumstances of this case there would be no point adjourning or staying the action while she took proceedings to establish that her degree of disability exceeded 16 per cent (see Turner v Kowloon). As a result the order of Nisbet DCJ striking out the action was the correct outcome.

Orders to be made

56 The consequence of the foregoing is that the appeal against the judgment of Nisbet DCJ should be dismissed. The appeal against the judgment of H H Jackson DCJ falls away because it stayed the action which was subsequently dismissed by Nisbet DCJ. I would simply dismiss the appeal against H H Jackson DCJ to clear up the record.