O'Reilly v Handbags International Pty Ltd

[2000] WADC 323

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   O'REILLY -v- HANDBAGS INTERNATIONAL PTY LTD [2000] WADC 323

CORAM:   COMMISSIONER REYNOLDS

HEARD:   29 NOVEMBER 2000

DELIVERED          :   12 DECEMBER 2000

FILE NO/S:   CIV 1653 of 1999

BETWEEN:   SANDRA MARGARET O'REILLY

Plaintiff

AND

HANDBAGS INTERNATIONAL PTY LTD
Defendant

Catchwords:

Appeal - Workers' compensation - Serious disability - Amendment to statement of claim - Whether ground not relied on to obtain leave to commence proceedings can be pleaded in statement of claim - S 93D Workers' Compensation and Rehabilitation Act 1981 as amended

Legislation:

Workers' Compensation and Rehabilitation Act 1981 as amended

Workers' Compensation and Rehabilitation Amendment Act 1999

Result:

Appeal dismissed

Representation:

Counsel:

Plaintiff:     Mr M D Cuerden

Defendant:     Mr T Lampropoulos

Solicitors:

Plaintiff:     Hammond Worthington

Defendant:     Greenland Brooksby

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

Nil

Case(s) also cited:

Kimberley Down Pty Ltd v State of Western Australia, unreported; SCt of WA; Library No 6414; 25 August 1986

COMMISSIONER REYNOLDS: 

Introduction

1. This is an appeal against the decision of Principal Registrar Harding given on 14 August 2000 when he ordered that the plaintiff have leave to amend her statement of claim in terms of a minute of amended statement of claim filed herein on 3 August 2000.  It may be useful to outline some of the history of the matter before I set out the proposed amendment in the minute of amended statement of claim.

2. The plaintiff is 46 years of age.  On 3 February 1997 she was employed as a sales person in the defendant's bag shop in Maddington.  The plaintiff alleges that on that date she experienced a shock of pain through her lower back and sustained an injury when she was lifting and unpacking boxes as part of her work duties.  She alleges injuries to her lower back and depression.  She claims damages including loss of enjoyment of life and loss of earnings as a consequence of the defendant's negligence and/or breach of contract and/or breach of statutory duty. 

3. On 13 April 1999 the plaintiff was granted leave of the court to commence an action against the defendant for damages consequent upon the alleged accident on 3 February 1997 pursuant to s 93D of the Workers' Compensation and Rehabilitation Act 1981 as amended and as applied at the time that such leave was granted ("the Amended Act"). Section 93D, s 93E and s 93F of the Amended Act were repealed by the Workers' Compensation and Rehabilitation Amendment Act 1999 ("the 1999 Amendment Act") which was assented to and became operative on 5 October 1999. 

4. Section 93D of the Amended Act relevantly provides that damages can only be awarded if the disability is a serious disability. In brief, a serious disability is one where the degree of disability is 30 per cent or more or the future pecuniary loss resulting from the disability is an amount that is at least equal to the prescribed amount. Section 93D(4) of the Amended Act provides that proceedings in which damages are sought are not to be commenced without the leave of the District Court. In brief, s 93D(5) of the Amended Act effectively provides that leave is to be granted if the parties agree or a medical assessment panel set up pursuant to the Amended Act assesses the worker's disability to be 30 per cent or more or the court determines that the worker is likely to have future pecuniary loss resulting from the disability of an amount that is at least equal to the prescribed amount.

5. The plaintiff obtained leave from the District Court to commence proceedings on the basis that she is likely to have future pecuniary loss resulting from the disability of an amount that is at least equal to the prescribed amount.  Leave was not given on the basis that the plaintiff's degree of disability was agreed by and between the parties to be 30 per cent or more or had been determined by a medical assessment panel pursuant to the Amended Act to be 30 per cent or more.

6. Pursuant to the leave granted on 13 April 1999 the plaintiff commenced an action against the defendant for damages consequent upon the alleged accident on 3 February 1997 by way of a writ of summons with an indorsement of claim filed herein on 23 April 1999.  The plaintiff's statement of claim was filed herein on 19 May 1999.

7. Having outlined this history of the matter I now come to set out the plaintiff's proposed amendment which was allowed by the Principal Registrar.  The plaintiff was given leave to add the following paragraph as par 15 of her amended statement of claim:

   "15.The injury has resulted in the Plaintiff suffering a serious disability within the meaning of that term in Section 93D of the Workers Compensation Rehabilitation Act 1981 as that section provided at the time that this action was commenced in that the Plaintiff has suffered:

   (a)       a degree of disability of 30% or more; and/or

   (b)future pecuniary loss at least equal to the prescribed amount.

   PARTICULARS OF DEGREE OF DISABILITY

   (a)30% disability of the lumbar spine;

   (b)30% loss of mental capacity resulting in total inability to work."

8. The issue on this appeal is whether, under s 93D of the Amended Act a plaintiff is entitled to rely upon a degree of disability of 30 per cent or more to establish a serious disability, and therefore his or her right to damages, where leave to commence the proceedings was obtained on the basis that he or she is likely to have future pecuniary loss resulting from the disability of an amount that is at least equal to the prescribed amount.

The relevant statutory provisions

1. Section 25 and s 93D(1) to 93D(7) inclusive of the Amended Act provide as follows:

   "25.   'Loss of'

   For the purpose of the table set out in Schedule 2, 'loss of' includes –

   (a)'permanent loss of the use of'; and

   (b)'permanent loss of the efficient use of'; but in such case such percentage of the appropriate amount payable as is equal to the percentage of the diminution of the full efficient use, may be awarded, in lieu of the full amount.

   …

   93D.No damages unless death or serious disability

   (1)Damages can only be awarded if the disability results in the death of the worker or it is a serious disability.

   (2)A disability is a serous disability if, and only if‑

   (a)the degree of disability would, if assessed as prescribed in subsection (3), be 30% or more; or

   (b)the future pecuniary loss resulting from the disability is of an amount that is at least equal to the prescribed amount.

   (3)For the purposes of subsection (2)(a), the degree of disability of a worker is to be assessed –

   (a)so far as Schedule 2 provides for such a disability, as a percentage equal to the percentage of the prescribed amount that is provided for by the Schedule as read with section 25;

   (b)to the extent, if any, that paragraph (a) does not apply, as the degree of permanent impairment assessed in accordance with the AMA Guides;

   (c)to the extent, if any, that neither paragraph (a) nor (b) applies, in accordance with the regulations,

   or if more than one of paragraphs (a), (b) and (c) applies, as the cumulative sum of the percentages assessed in accordance with those paragraphs.

   (4)Proceedings in which damages are sought are not to be commenced without the leave of the District Court.

   (5)Leave is to be given if –

   (a)the disability results in the death of the worker or the parties agree that the degree of the workers' disability would, if assessed as prescribed in subsection (3), be 30% or more;

   (b)on a reference under subsection (7) or (8) it is determined that the degree of the workers' disability would, if assessed as prescribed in subsection (3), be 30% or more; or

   (c)the court determines that the worker is likely to have future pecuniary loss resulting from the disability of an amount that is at least equal to the prescribed amount.

   (6)If there is a dispute as to whether the degree of disability would, if assessed as prescribed in subsection (3), be 30% or more, the question may be referred to the Director.

   (7)A question referred to the Director under subsection (6) is to be referred for determination by a medical assessment panel except in a case to which subsection (8) applies."

2. Subsection (8) of s 93D of the Amended Act is concerned with various chest diseases and so it has no application in this case.

3. Schedule 2 of the Amended Act sets out under column 1 various types of injuries and under column 2 a corresponding ratio for each type of injury which the sum payable bears to the prescribed amount eg total loss of sight of both eyes – 100 per cent, permanent and incurable loss of mental capacity resulting in total inability to work – 100 per cent, loss of a hand and foot – 100 per cent, loss of leg below knee – 65 per cent and permanent loss of the full efficient use of the back (including thoracic and lumbar spine) – 60 per cent.  In this particular case by par 15 of the amended statement of claim the plaintiff alleges a 30 per cent disability of the lumbar spine and a 30 per cent loss of mental capacity resulting in total inability to work.

4. Section 32(7) of the 1999 Amendment Act provides as follows:

   "(7)The amended provisions do not affect the awarding of damages in proceedings –

   (a)       commenced before the assent day; or

   (b)for the commencement of which the District Court gave leave under the former provisions before the assent day,

   and the former provisions continue to apply in relation to those proceedings."

5. Section 32(5) of the 1999 Amendment Act repealed s 93D, s 93E and s 93F of the Amended Act and substituted them with new provisions. Therefore as from the assent date 5 October 1999 a new statutory scheme replaced the scheme that had been operative until then under the Amended Act. The reference to "amended provisions" in s 32(7) of the 1999 Amendment Act is a reference to the provisions in the 1999 Amendment Act which created and set out the new scheme effective from 5 October 1999.

Analysis of the various statutory provisions

1. The defendant's arguments that leave should not have been granted to the plaintiff to amend her statement of claim by inserting par 15 are as follows. The District Court did not, and could not, give leave to the plaintiff to commence common law proceedings on the basis that the degree of disability assessed in accordance with s 93D(3) of the Amendment Act was 30 per cent or more. It is submitted that the plaintiff by her amendment is seeking a determination from this Court in these proceedings in which she claims damages that her degree of disability is 30 per cent or more and is thereby seeking to avoid the hurdle created by s 93D(1) and s 93D(2)(a) of the Amended Act. It is further submitted that as there is a dispute as to the degree of disability, that issue can only be determined pursuant to s 93D(6) and s 93D(7) of the Amended Act by a medical assessment panel on a reference from the Director. It is further submitted that in any event pursuant to s 93D(4) and s 93D(5)(a) and s 93D(5)(b) of the Amended Act the determination by a medical assessment panel is required to be made before the commencement of proceedings in which damages are sought.

2. On my reading of s 93D of the Amended Act it provides for both the circumstances in which a worker may be granted leave to commence proceedings for damages against a worker's employer subject to certain exclusions and also the circumstances in which damages may actually be granted.

3. In my opinion there is nothing in s 93D or elsewhere in the Amended Act that would suggest that the court is confined to looking at the ground upon which leave was granted to commence a common law action when considering, as it must by reason of s 93D(1) of the Amended Act, whether or not the worker in fact suffers from a serious disability for the purpose of determining whether or not damages can be awarded. If any one of the provisions of s 93D(5)(a), s 93D(5)(b) and s 93D(5)(c) of the Amended Act is satisfied then leave is to be given. If either one of the provisions of s 93D(2)(a) and s 93D(2)(b) of the Amended Act is satisfied then damages can be awarded. There is no statutory link between s 93D(2) and s 93D(5) that requires the court to be satisfied that the basis of the serious disability in s 93D(2) is the same as the basis upon which leave was granted pursuant to s 93D(5) before the court can award damages.

4. I am also of the opinion that there is nothing in s 93D(6) and s 93D(7) or elsewhere in the Amended Act to suggest that the dispute resolution procedure prescribed applies only in the context of considering whether or not leave is to be given pursuant to s 93D(5)(b)of the Amended Act. When the provisions of s 93D of the Amended Act are considered as a whole they give rise to the view that s 93D(6) and s 93D(7) should be construed to apply to a dispute either for the purpose of determining whether or not leave is given pursuant to s 93D(5)(b) or for determining whether or not a disability is a serious disability within the meaning of s 93D(2)(a) such that damages can be awarded pursuant to s 93D(1) or in some cases both. In cases where leave was granted based wholly or partly on the determination of a medical assessment panel that the worker's disability was 30 per cent or more then such determination could also be relied on by the worker to satisfy the provisions of s 93D(1) and s 93D(2)(a) of the Amended Act.

5. In my opinion the provisions of s 93D(4) of the Amended Act make the granting of leave a condition precedent to the commencement of common law proceedings in which damages are sought. A determination by a medical assessment panel pursuant to s 93D(7) of the sort provided in s 93D(5)(b) of the Amended Act does not necessarily have to be made before the commencement of common law proceedings in which damages are sought if leave was given to commence the common law proceedings pursuant to s 93D(5)(c) of the Amended Act before the common law proceedings were actually commenced.

6. It is important to note that s 93D(5)(a) of the Amended Act provides that leave is to be given if the parties agree that the degree of the worker's disability would, if assessed as prescribed in s (3), be 30 per cent or more. Given the basic outline of the statutory scheme as provided in s 93D of the Amended Act this particular provision in S 93D(5)(a) would be reasonably expected to be included in the legislation. It avoids the necessity for a medical assessment panel to be convened to consider and determine the degree of a worker's disability when there is no issue about it as between the parties. The point is that it would only be necessary to refer the question of the degree of a worker's disability to the Director and in turn a medical assessment panel for determination if there is a dispute about it as between the parties.

7. I note that par 15 of the amended statement of claim makes express reference to the plaintiff suffering a serious disability as at the time that the common law proceedings were commenced.  Even if the amendment is given effect from when the common law proceedings were commenced or the statement of claim was filed then that would not present any impediment at all to the amendment in the sense of it bringing a cause of action outside the statutory limit within time.  The amendment is not a cause of action and therefore it does not add to or vary the cause of action already pleaded by the plaintiff in her statement of claim.  Further, the statutory limitation period of six years has still not expired. 

8. Further, by the provisions of s 32(7) of the 1999 Amendment Act the amended provisions ie the provisions of the new scheme introduced by operation of the provisions of the 1999 Amendment Act, do not affect the awarding of damages in proceedings (a) commenced before the assent day or (b) commenced pursuant to leave given under the Amended Act before the assent day and the provisions of the Amended Act continue to apply to those proceedings. The plaintiff's proceedings only need to fall within the operation of one of s 32(7)(a) and s 32(7)(b) of the 1999 Amendment Act in order for the provisions of the Amended Act and in particular s 93D to continue to apply to her common law proceedings commenced herein on 23 April 1999 in which she has sought damages against the defendant. In this case the plaintiff's common law proceedings satisfy each and both of s 32(7)(a) and s 32(7)(b) of the 1999 Amendment Act.

9. In my opinion the effect of all of this is as follows. The Principal Registrar was right to allow the plaintiff leave to amend her statement of claim by adding par 15 in its present form. As a matter of procedure the defendant would either admit or deny the plaintiff's allegation in par 15(a) of the amended statement of claim. If admitted, the power of the Court to award damages pursuant to s 93D(1) and s 93D(2)(a) is admitted. If denied then that would clearly signal a dispute which may be referred to the Director pursuant to s 93D(6) of the Amended Act. Pursuant to s 93D(7) of the Amended Act the Director must then refer it to a medical assessment panel for determination. Pursuant to s 145E(5) of the Amended Act the determination of the medical assessment panel is then final and binding upon, inter alia, this Court.

Conclusion

1. For all these reasons I am of the opinion that this appeal against the decision of the Principal Registrar should be dismissed.