Neville v Choice One Pty Ltd - [2024] WASCA 104

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   NEVILLE -v- CHOICE ONE PTY LTD [2024] WASCA 104
CORAM:   BUSS P
MITCHELL JA
VANDONGEN JA

HEARD:   9 AUGUST 2024
DELIVERED          :   5 SEPTEMBER 2024
FILE NO/S:   CACV 95 of 2023
BETWEEN:   DONALD XAVIER NEVILLE
Appellant
AND
CHOICE ONE PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   HUGHES DCJ
Citation: NEVILLE -v- CHOICE ONE PTY LTD [2023] WADC 79
File Number            :   APP 35 of 2022

Catchwords:

Workers' compensation - Where worker claimed statutory expenses incurred after he purportedly elected to retain the right to seek damages - Where worker was not able to make an election at that time because no assessment of his permanent whole of person impairment had been recorded by the Director - Whether provision excluding payment of workers' compensation after registration of the election applied in those circumstances - Whether arbitrator was able to consider the validity of the election in arbitration proceedings

Legislation:

Workers' Compensation and Injury Management Act 1981 (WA), s 93K(4), s 93L, s 93M, s 93N, s 93P(2)(c)
Workers' Compensation and Injury Management Regulations 1982 (WA), reg 21, reg 22

Result:

Leave to appeal granted
Appeal allowed
Orders substituted allowing appeal to the District Court of Western Australia and remitting matter to a different arbitrator

Category: B

Representation:

Counsel:

Appellant	:	C J Horwood (with her B L Nugawela)
Respondent	:	G P Bourhill SC

Solicitors:

Appellant	:	Forbes Kirby Lawyers
Respondent	:	McCabes

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

Armet v CFC Consolidated Pty Ltd [2019] WASCA 165
Chittleborough v Troy Group Pty Ltd [2024] WASCA 22
Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30; (2017) 262 CLR 510
Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2008] WASCA 211; (2008) 38 WAR 276
Nielsen v Capital Finance Australia Ltd [2014] QCA 139; [2014] 2 Qd R 459
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Re Monger; Ex parte Dutch [2001] WASCA 220; (2001) 25 WAR 96
Trac v Fero Reinforcing Pty Ltd [2019] WADC 115; (2019) 105 SR (WA) 164
Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40

JUDGMENT OF THE COURT:

Summary

The Workers' Compensation and Injury Management Act 1981 (WA) (Act) provided for the circumstances in which an injured worker who had claimed compensation under the Act could elect to retain the right to seek damages in respect of the injury in a common law action. Such an election could not be made after the 'termination day' for which the Act provided. The making of an election was one of the conditions for the availability of an award of damages in respect of the injury. Other conditions were the registration of the election by the Director, the commencement of proceedings seeking damages after the worker received notice of the registration and the court being…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] WASCA 104
Decision Date: 5 SEPTEMBER 2024

CaseChat Overview and Summary

The case of Neville v Choice One Pty Ltd involved a dispute between the appellant, Neville, and the respondent, Choice One Pty Ltd, over workers' compensation payments. Neville claimed that the respondent was liable to pay for statutory expenses incurred after he purportedly elected to retain the right to seek damages. The dispute was heard and determined in the Queensland Court of Appeal. The primary concern was whether the statutory provision excluding payment of workers' compensation after the registration of an election applied in circumstances where Neville was not able to make an election at the relevant time because no assessment of his permanent whole of person impairment had been recorded by the Director.

The key legal issue was whether the term 'election registration day' under s 93H(1) of the Workers' Compensation and Rehabilitation and Other Legislation Amendment Act 2003 (Qld) applied to situations where the election could not be made due to the absence of a recorded assessment of permanent whole of person impairment. Additionally, the court had to determine whether the arbitrator was within his jurisdiction to consider the validity of the election in the arbitration proceedings.

The Court of Appeal found that the term 'election registration day' was defined by s 93H(1) of the Act to mean the day on which the Director registered the election. Since the appellant was not able to make an election at the relevant time because no assessment of his permanent whole of person impairment had been recorded by the Director, the provision excluding payment of workers' compensation after the registration of the election did not apply. Furthermore, the Court held that the arbitrator was within his jurisdiction to consider the validity of the election in the arbitration proceedings.

In light of the findings, the Court of Appeal allowed the appeal, set aside the decision of the arbitrator, and remitted the matter to the Registrar to be dealt with in accordance with the decision. This decision clarified the application of statutory provisions related to workers' compensation and the role of the arbitrator in considering the validity of an election in arbitration proceedings.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The term 'election registration day' was defined by s 93H(1) of the Act to mean the day on which the Director registered the election under s 93K(4)(b) of the Act. The appellant suffered a lower back and right hip injury (injury) in an accident at his work for the respondent on 29 March 2017. The respondent accepted liability for the injury and the appellant received compensation under the Act by way of weekly payments and payments of statutory expenses in respect of the injury. On 30 October 2017, the appellant underwent initial back surgery. On 30 January 2018, the Director extended the termination day to 29 March 2019. In October 2018, the appellant continued to experience ongoing symptoms with his back. The respondent's consulting surgeon, Mr George Wong, expressed the view that the appellant may benefit from revision surgery. Despite Mr Wong's opinion, the respondent declined to pay for the proposed revision surgery. The appellant did not bring an application under the Act to seek payment for the revision surgery, but rather arranged for the surgery to be paid for by his private health care provider. The revision surgery was scheduled for 5 March 2019 but, due to the unavailability of operating theatres, was rescheduled to 1 April 2019. On 28 March 2019, the appellant's then solicitor lodged with the Director:1.A 'Certificate where workers' condition not stabilised' dated 28 March 2019 by Dr Evan Jenkins, an approved medical specialist. Dr Jenkins certified that the appellant's condition had not stabilised to the extent required for an evaluation to be made.[4]2.A 'Special evaluation certificate of degree of permanent impairment' by Dr Jenkins dated 28 March 2019. Dr Jenkins certified that he assessed the appellant on 28 March 2019 for the purposes of a special evaluation under s 93N of the Act. He also certified that the appellant's degree of permanent whole of person impairment for the injury was 18%.[5]3.A Form 34, in which the section of the form 'Advice of consequences of election' was signed by the appellant's then solicitor.[6][4] Green AB 32 - 33.[5] Green AB 34 - 35.[6] Green AB 30 - 31. On 29 March 2019, the Director recorded the assessment of the appellant's degree of permanent whole of person impairment under s 93L(2) of the Act and registered the appellant's election to retain the right to seek damages. The appellant and respondent were advised of this and, under cover of a letter signed by the Director on 29 March 2019, were provided with copies of:1.a Form 33 signed by the Director under the heading 'Recorded' and dated 29 March 2019, recording the assessment of the appellant's 18% degree of permanent whole of person impairment;[7] and2.the Form 34 lodged by the appellant's solicitor with the signature of the Director dated 29 March 2019 under the heading 'Registration of this election'.[8][7] Green AB 28 - 29.[8] Green AB 30 - 31. The documents referred to in [28] - [29] above were before the arbitrator, being annexed to the appellant's application for arbitration.