Parker v St BARTHOLOMEWS House Inc - [2003] WADC 44

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: PARKER -v- ST BARTHOLOMEWS HOUSE INC [2003] WADC 44

CORAM: O'SULLIVAN DCJ

HEARD: 29 JANUARY 2003

DELIVERED : 5 MARCH 2003

FILE NO/S: CIV 2473 of 2001

BETWEEN: KEVIN PARKER
Plaintiff
AND
ST BARTHOLOMEWS HOUSE INC
Defendant

Catchwords:

Workers' Compensation and Rehabilitation Act 1981, Part IV Division 2, s 5, s 64, s 93B, s 93D, s 93E - Whether compensation for an injury "payable" under the Act - Appeal from decisions of Deputy Registrars

Legislation:

Workers' Compensation and Rehabilitation Act 1981, Part IV Division 2, s 5, s 64, s 93B, s 93D, s 93E

Result:

Stay of these proceedings granted

Representation:

Counsel:

Plaintiff: Mr C P Prast
Defendant: Mr G R Hancy

Solicitors:

Plaintiff: Slater & Gordon
Defendant: Basile Hawkins

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

Janssen v Commonwealth of Australia [1994] Qd R 596

Case(s) also cited:

Briggs v Glentham Pty Ltd (1992) 8 WAR 339
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
Hunt v Knabe (No 2) (1992) 8 WAR 96
Janssen v Commonwealth of Australia [1994] Qd R 596

O'SULLIVAN DCJ: These are appeals against decisions of two registrars of this court and it is convenient to deal with them together. They concern the right of the plaintiff to pursue a claim at common law for damages as a result of injuries said to have been sustained in the course of his employment by the defendant.
The defendant operates a hostel and employed the plaintiff for some years as a supervisor and carer.
By writ issued on 20 September 2001 the plaintiff claimed damages for injuries said to have been sustained in the course of his employment. By endorsement upon the writ the plaintiff claimed:
"… damages for personal injury including a psychiatric condition during the course of the Plaintiff's employment with the defendant … which injuries … were caused by the negligence and/or breach of contract and/or breach of statutory duty of the Defendant, its employees, servants and/or agents."
The writ was issued without any agreement or determination having been made pursuant to s 93D of the Workers' Compensation and Rehabilitation Act 1981 as amended ("the Act") as to the level of the plaintiff's disability.
By chamber summons dated 1 November 2001 the defendant applied for an order that the plaintiff's action be stayed until he obtained an agreement or determination of the level of his disability. The application was heard by Deputy Registrar Hewitt and dismissed on 26 February 2002.
Put shortly, the learned Deputy Registrar concluded that a stay should not be granted because at that stage in the proceedings no statement of claim had been filed and the endorsement of claim was able to be read as a claim for damages for psychiatric injuries of such a kind as not to be compensable under the Act. Accordingly he considered that it was arguable that s 93D did not apply to require any agreement or determination of the level of the plaintiff's disability.
Following this decision a statement of claim was filed by the plaintiff and it is the defendant's contention that the pleading makes it clear that the psychiatric injuries which the plaintiff alleges he suffered were not of a kind which are outside the scope of the Act.
By chamber summons dated 29 April 2002 the defendant applied for an order that the plaintiff's statement of claim be struck out. On the hearing of the application an alternative application was also brought that the action be stayed. The applications were heard by Deputy Registrar Harman and dismissed on 9 August 2002.
Appeals from decisions of registrars of this court are, of course, heard de novo and it is unnecessary to demonstrate any error at first instance. Accordingly there is no requirement to consider the reasons for that purpose although it may be useful to do so.
It cannot now be in dispute that the plaintiff's claim is for damages for injuries of such a nature as can be the subject of compensation under the Act. The definition of "disability" in s 5 expressly excludes a disease caused by stress brought on by circumstances described in s 5(4) which covers matters such as the dismissal of a worker or his demotion or transfer or disciplining. These were circumstances that Deputy Registrar Hewitt thought might be covered by the endorsement of claim but the statement of claim makes it clear that they are not.
It follows that on the face of it the plaintiff has brought an action for damages for injuries of a kind which can be the subject of compensation under the Act.
Part IV Division 2 of the Act is headed "Constraints on awards of common law damages". Section 93B(1) which is within Division 2 provides:
"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."
Section 93C reads as follows:
"Limits on powers of courts
If this Division applies a court is not to award damages to a person contrary to this Division."
Section 93D is entitled "Assessment of Disability" and sets out a procedure for calculating the level of disability of a worker. Section 93E(3) then provides:
"Damages can only be awarded if —
(a)it is agreed or determined that the degree of disability is not less than 30% and that agreement or determination is recorded in accordance with the regulations; or
(b)the worker has a significant disability and elects, in the prescribed manner, to retain the right to seek damages and the election is registered in accordance with the regulations."
It can be seen that the scheme of the Act in Division 2 is to forbid the award of damages to an injured worker who is caught by it unless the level of disability of the worker has been agreed or determined.
The plaintiff contends that Division 2 does not apply because although he suffered a "disability caused by the negligence of his employer" so as to fall within the requirements of s 93B(1) his claim is not of a kind described by s 93B(1)(b).
It is common ground that the plaintiff has not received any compensation under the Act and he argues that none is "payable" within the meaning of that word in s 93(1)(b). As I understand it he makes this submission because it is the case that he has not complied with s 64 of the Act and has therefore lost any right to compensation which he might have had.
Section 64(1) reads as follows:
"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."
The plaintiff submits that because he was required to attend for medical examination and failed to do so any right to compensation which he might have had was first suspended and has now ceased. Accordingly he now says he cannot be regarded as a worker to whom compensation is payable and therefore Division 2 of the Act does not apply.
In my view that submission should be rejected. In my opinion the word "payable" in s 93B(1)(b) means, in respect of compensation to which a worker might be entitled, compensation able to be paid in accordance with the provisions of the Workers' Compensation and Rehabilitation Act subject to compliance with its procedural requirements. It does not mean compensation able to be paid even if those requirements have not now been observed. It would, in my view, be odd to construe s 93B as contemplating that compensation is not able to be paid simply because a worker has not done what he ought to have done to secure payment to himself. If the contrary argument were accepted it would be open to a worker to circumvent the constraints laid out in Part IV Division 2 of the Act simply by refusing to attend for medical examination when required. In my view that is not what parliament intended.
Support for this conclusion is, in my opinion, to be found in the judgments of the court in Janssen v Commonwealth of Australia [1994] Qd R 596. While that was a case involving a question of the proper construction of provisions of the Commonwealth Employees Rehabilitation and Compensation Act 1988 (as amended) the relevant sections under consideration by the court were not dissimilar to those which apply in this case. Section 44 of that Act prohibited actions for damages for personal injuries being brought against the Commonwealth other than in accordance with s 45. Section 45 provided in effect that a Commonwealth employee who claimed to have been injured could elect to bring an action at common law against the Commonwealth provided he had suffered an injury for which compensation was "payable" under the Act. The court held that the word "payable" in s 45 did not mean "immediately payable" but referred to a liability to pay, subject to compliance with the procedural requirements laid down by the Act, including the making of a claim.
In my opinion a stay of these proceedings should now be granted. The court is unable to award damages until there has been an agreement or determination of the degree of disability.
I will hear from counsel as to the appropriate orders to be made in respect of these appeals.