ORANA HOUSE INC -v- STARCEVIC [2005] WASCA 183

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASCA 183
Court:	THE COURT OF APPEAL (WA)
Case No:	FUL:100/2004	Heard:	13 JUNE 2005
Coram:	STEYTLER P WHEELER JA ROBERTS-SMITH JA	Delivered:	22/09/05
No of pages:	14	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	A
PDF Version

Parties:	ORANA HOUSE INC SLAVICA STARCEVIC
Catchwords:	Workers' compensation Entitlement to lump sum compensation under Sch 2 Workers' Compensation and Rehabilitation Act 1981 Whether entitlement exists after worker has registered an election to retain right to damages at common law
Legislation:	Workers' Compensation and Injury Management Act 1981 (WA), s 18, s 24, s 24B, s 25, s 67, s 68, s 93E(3), s 93E(4), s 93E(8), Sch 1, Sch 2 Workers' Compensation and Injury Management Regulations 1982 (WA), reg 4 Workers' Compensation and Rehabilitation Act 1981 (WA), s 24, s 24B, s 93E(8) Workers' Compensation Act 1912-1975 (WA), s 7(3)
Case References:	Chalmers v Conaust WA Pty Ltd, unreported; CM-31/01; 8 August 2001 Geraldton Building Co Pty Ltd v May (1976) 136 CLR 379 Geraldton Building Co Pty Ltd v May (1977) 136 CLR 379 New South Wales Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509 Abraham v Lee & Sons (1988) 8 WCR (WA) 13 Bird v The Commonwealth (1988) 165 CLR 1 Hatton v Great Boulder Gold Mines Pty Ltd [1981] WAR 349 Hewitt v Benale Pty Ltd; WMC Resources Ltd v Koljibabic (2002) 27 WAR 91 Moyle v Minister for Works [1979] WAR 183 Munro v Department of Fisheries & Wildlife [1978] WAR 1 Wilson v Wilson's Tile Works Pty Ltd (1960) 104 CLR 328

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : ORANA HOUSE INC -v- STARCEVIC [2005] WASCA 183 CORAM : STEYTLER P

WHEELER JA

ROBERTS-SMITH JA

HEARD : 13 JUNE 2005 DELIVERED : 22 SEPTEMBER 2005 FILE NO/S : FUL 100 of 2004 BETWEEN : ORANA HOUSE INC

Appellant

AND

SLAVICA STARCEVIC

Respondent

ON APPEAL FROM:

Jurisdiction : COMPENSATION MAGISTRATE'S COURT

Coram : MS P M HOGAN CM

File No : CM 195 of 2003

Catchwords:

Workers' compensation - Entitlement to lump sum compensation under Sch 2 Workers' Compensation and Rehabilitation Act 1981 - Whether entitlement exists after worker has registered an election to retain right to damages at common law

(Page 2)

Legislation:

Workers' Compensation and Injury Management Act 1981 (WA), s 18, s 24, s 24B, s 25, s 67, s 68, s 93E(3), s 93E(4), s 93E(8), Sch 1, Sch 2

Workers' Compensation and Injury Management Regulations 1982 (WA), reg 4
Workers' Compensation and Rehabilitation Act 1981 (WA), s 24, s 24B, s 93E(8)
Workers' Compensation Act 1912-1975 (WA), s 7(3)

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

Appellant : Mr P E Jarman

Respondent : Mr S Melville

Solicitors:

Appellant : Jarman McKenna

Respondent : Chapmans

(Page 3)

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

Chalmers v Conaust WA…

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: [2005] WASCA 183
Decision Date: 22 SEPTEMBER 2005

CaseChat Overview and Summary

The appeal heard by the Court of Appeal involved Orana House Inc, the respondent, and Starcevic, the appellant. The central issue was whether the appellant was entitled to a lump sum compensation under Schedule 2 of the Workers' Compensation and Rehabilitation Act 1981, following his election to retain the right to damages at common law. The appellant had sustained injuries in a workplace incident and had elected to retain his right to damages, yet he sought to also claim lump sum compensation under the Act.

The legal question before the court was whether the appellant's election to retain his right to common law damages precluded him from claiming lump sum compensation under the Workers' Compensation and Rehabilitation Act 1981. The court needed to interpret the relevant statutory provisions and determine whether these provisions allowed for such a dual claim. The court examined the statutory framework, focusing on the interplay between the appellant's election and the entitlement to compensation under the Act.

The court found that the statutory provisions did not permit the dual claim. It held that the appellant's election to retain his right to damages at common law precluded him from also claiming lump sum compensation under the Act. The court reasoned that the legislative intent behind the Act and the appellant's election was to provide an exclusive remedy for workplace injuries, either through the statutory compensation scheme or common law damages, but not both. Consequently, the appeal was dismissed, affirming the lower court's decision.

Orders

Orders of the court

Appeal dismissed

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

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