Re: Mears v Coles Myer Ltd
[1999] QSC 194
•18 August 1999
IN THE SUPREME COURT
OF QUEENSLANDBrisbane No.99 of 1999
Before the Hon. Mr Justice Shepherdson
[re: Mears v Coles Myer Ltd]
BETWEEN:
ANDREW CHARLES MEARS
Plaintiff
AND:
COLES MYER LTD (ACN 004 089 936)
DefendantREASONS FOR JUDGMENT - SHEPHERDSON J.
Judgment delivered 18 August 1999
CATCHWORDS: PROCEDURE - APPLICATION TO STRIKE OUT ACTION - plaintiff injured at work on 10 January 1996 and on 6 January 1996 issued writ of summons - plaintiff had not obtained a certificate, conditional or otherwise, pursuant to s 182D of the Workers' Compensation Act1990 - whether the action should be struck out because of lack of certificate.
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (Reg) (1997) 188 CLR 241
Thorpe v The Commonwealth (No 3) (1997) 71 ALJR 767
Ha v New South Wales (1996) 70 ALJR 611 at p 613
Lindon v The Commonwealth (No 2) (1996) 70 ALJR 541
Young v Keong (1998) 27 MVR 465
Workers' Compensation Act 1990 s 182D
LIMITATION OF ACTIONS - POSTPONEMENT OF THE BAR - EXTENSION OF PERIOD - plaintiff makes cross-application that if defendant is successful on application to have action struck out that the limitation period be extended pursuant to s 31(2) Limitation of Actions Act 1974.
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Limitation of Actions Act 1974 ss 11, 31(2)
WORKERS' COMPENSATION - PROCEEDINGS TO OBTAIN COMPENSATION - statutory construction - meaning of "seek damages at law" pursuant to s 182D(1) Workers' Compensation Act 1990.
Workers' Compensation Act 1990 ss 182A - 182E
Counsel:Mr D Kent for the plaintiff
Mr R J Douglas SC for the defendant
Solicitors: Shepherds Lawyers for the plaintiff
Mullins & Mullins for the defendant
Hearing date: 21 July 1999
IN THE SUPREME COURT
OF QUEENSLANDBrisbane No.99 of 1999
Before the Hon. Mr Justice Shepherdson
[re: Mears v Coles Myer Ltd]
BETWEEN:
ANDREW CHARLES MEARS
Plaintiff
AND:
COLES MYER LTD (ACN 004 089 936)
DefendantREASONS FOR JUDGMENT - SHEPHERDSON J.
Judgment delivered 18 August 1999
The defendant has applied on summons to strike out the plaintiff's action on the grounds set out in its conditional appearance namely, that the defendant:
"denies the jurisdiction of the court to entertain the action against the defendant in that the plaintiff is a worker who had not, as at the date of issue of the writ in this action, received an offer of lump sum compensation under s 132 of the Workers Compensation Act 1990 and, further, had not then received from the Workers' Compensation Board a certificate under s 182D of that Act either conditionally or otherwise and is therefore not entitled, having regard to s 182D, to seek damages at law for the alleged injury the subject of this action."
The application, which is opposed, poses some difficulty in that it requires consideration of the interaction of s 11 of the Limitation of Actions Act1974 and certain provisions of the Workers' Compensation Act1990.
I turn now to the chronology of relevant events. The plaintiff was born on 21 November 1952, and at about 4 pm on 10 January 1996, while working for the defendant as a forklift driver, he suffered fractures of his left leg and ankle. He had been employed by the defendant for 12 years and a forklift driver for eight of these years. Early in his shift on 10 January 1996, he had picked up his task sheets and while walking towards his forklift to start work, he was injured when an electric pallet mobil ran into him crushing his lower left leg against a steel rail. There is evidence to suggest that the driver of the mobil was new at his job and should have had a supervisor while he was driving the mobil.
On 12 January 1996, plaintiff signed an application for Workers' Compensation. The date this application was lodged with Work Cover Queensland is not known but there is no doubt that it was lodged. The plaintiff underwent surgery to his left ankle and was off work for a total of nearly eight and a half months.
On 16 October 1998, the plaintiff retained Mr Ian Shepherd of Shepherds Lawyers of Beenleigh, to make an application to Work Cover for an assessment of plaintiff's permanent disability to his left leg with a view to obtaining an offer of statutory lump sum compensation.
On 16 October 1998, Mr Shepherd wrote to Work Cover Queensland applying for such assessment and asked Work Cover to arrange for the plaintiff to be examined for the purpose of the assessment.
On 11 November 1998, Mr Shepherd, having had no response to his letter, wrote to Work Cover enclosing a copy of his letter dated 16 October 1998 and seeking a reply.
On 1 December 1998, on Mr Shepherd's instructions, his secretary telephoned Work Cover Queensland and was told an assessment had been arranged for 24 December 1998.
On 24 December 1998, plaintiff attended and was examined by Dr David A.F. Morgan, an orthopaedic surgeon with special interest in disorders of the hip and knee and a Clinical Associate Professor of University of Queensland.
On 29 December 1998, Dr Morgan made a written report addressed to Work Cover Queensland, a photocopy of which is Exhibit A to an affidavit of Patrick James Mullins filed by leave on 21 July 1999. When Work Cover Queensland received Dr Morgan's report is not known.
On 6 January 1999, Mr Shepherd issued the writ of summons in this action. The endorsement on the writ reads:
"The plaintiff's claim is for damages for breach of duty as an employer and/or for negligence and/or for breach of statutory duty together with interest on damage under the Common Law Practice Act."
Mr Shepherd has sworn that he issued the writ in order to prevent the plaintiff's claim becoming statute barred.
Before serving the writ on 8 March 1999, Mr Shepherd had:
(a)on 13 January 1999 written to Work Cover Queensland requesting details of the assessment undertaken on 24 December 1998;
(b)on 29 January 1999 written to Work Cover Queensland enclosing a copy of his letter of 13 January 1999 and stating he was awaiting a response;
(c)on 2 March 1999 written to Work Cover Queensland pointing out he had received no response to his two earlier letters; he enclosed a copy of his letter of 13 January 1999 and asked for a response.
On 1 March 1999 a claims liability officer of Work Cover Queensland had signed a "Notice of Assessment" also dated 1 March 1999. This document was addressed and sent to the plaintiff and not to Mr Shepherd. I infer this from the fact that on 4 March 1999 plaintiff attended Mr Shepherd's office with the original Notice of Assessment which was then signed by the plaintiff in Mr Shepherd's presence. Mr Shepherd returned the Notice of Assessment to Work Cover Queensland under cover of his letter dated 4 March 1999.
The Notice of Assessment informed the plaintiff of (inter alia) the following matters:
1.That it had been determined as a result of his medical assessment that plaintiff had sustained permanent impairment from his injury ("fracture and degeneration left ankle"), that the degree of permanent impairment was 10 per cent, that the degree of impairment attributable to the injury was 10 per cent and that the amount of lump sum compensation to which he was entitled was $8,665.
2.That the injury was a "non-certificate" injury.
3.That the plaintiff must make a decision about the degree of permanent impairment by ticking one of the two boxes on the notice (box A or box B) indicating agreement or disagreement with the degree of permanent impairment.
4.That Work Cover offered payment of lump sum compensation in the amount of $8,665 and that the plaintiff must make an election about the offer by accepting the offer, rejecting the offer or deferring the offer. He was required by the notice to make this election by ticking one of three boxes appearing on the Notice of Assessment.
In the event, the plaintiff ticked box A in which he agreed with the degree of permanent impairment but when it came to the offer, he ticked the box rejecting the offer.
I note that the Notice of Assessment when telling the plaintiff "you must make an election about the offer of lump sum compensation" and then asking him to indicate his election by ticking one of the boxes below, went on to say:
"Worker's Election (do not complete the election if you have ticked box B in step 1)
oI accept the offer. In accepting I understand that I cannot seek damages for the injury
o I reject the offer. In rejecting I understand that I am not entitled to lump sum compensation but may seek damages for the injury
oI defer the offer. In deferring I understand that I may accept this offer at a later time by written notice to Work Cover. I further understand that if I seek to negotiate a damages settlement or commence proceedings for damages I can no longer accept the offer."
On 8 March 1999, Mr Shepherd served the writ on Work Cover Queensland via document exchange and by pre-paid post served the defendant at its registered office in Victoria.
On 20 April 1999, Mr Mullins of the defendant's solicitors spoke to Mr Shepherd requesting an extension of time until 30 April 1999 within which to file and serve a notice of appearance.
On 30 April 1999, Mr Shepherd's secretary received a telephone call from Mr Mullins who said he would file an entry of appearance on 4 May 1999.
On 5 May 1999, Mr Shepherd spoke on the telephone with Mr Mullins who said he would send an entry of appearance and defence "today".
On 6 May 1999, Mr Shepherd received a facsimile letter from the defendant's solicitor which included the following passage:
"At the time the writ was issued your client was a worker who had not received an offer of lump sum compensation under s 132 [Workers' Compensation Act1990].
Pursuant to sub-section 1 of s 182D a person in your client's position could only seek damages at law for an injury suffered after commencement of the legislation only if Work Cover had given your client a certificate under s 182D.At the time of the issue of the writ Work Cover was only able to give such a certificate if it had decided that the injury was an injury within the meaning of the Act and was suffered after the commencement of the legislation and further, if the degree of your client's permanent impairment resulting from the injury had been assessed in the way mentioned for the injury under s 130A(1).
At the time of the issue of the writ on 6 January 1999 that assessment of impairment had not taken place.
Further, we understand that at the time the writ was issued your client had not received from Work Cover a conditional certificate of the time referred to in s182D(?) [photocopy indecipherable]
It follows that at the time your client issued the proceedings on 6 January 1999 he was not entitled to issue the proceedings having regard to the provisions of s 182D.
We therefore take the view that the proceedings are a nullity or alternatively that the issue of the proceedings in the circumstances is an abuse of the process of the court.
Accordingly we do not propose to enter any appearance.
If you take a different view to the one we have set out here and are intent on entering judgment then we ask that you give us prior notice so that we can take appropriate steps to protect our clients position."
Mr Shepherd has sworn that the facsimile to which I have just referred was the first indication he had had from Mr Mullins that Work Cover would place reliance on s 182D.
On 11 May 1999, Mr Shepherd caused a facsimile letter to be sent to the defendant's solicitors offering to discontinue the current proceedings and reissue new proceedings upon the defendant's undertaking not to rely on a limitation of action defence.
On 12 May 1999, Mr Shepherd's firm was served with the summons to strike out the action and entry of conditional appearance filed on behalf of the defendant. It is that summons with which I am dealing - it was first returnable on 2 June 1999.
The summons was adjourned to a later date, but on 27 May 1999 Mr Shepherd received a further facsimile from the defendant's solicitors advising him that if the plaintiff discontinued the current proceedings and commenced further proceedings the defendant would plead the limitation defence. I should add for completeness that on 3 June 1999 the plaintiff did issue a summons seeking orders that the conditional entry of appearance be struck out and that judgment be entered for the plaintiff with damages to be assessed.
The defendant has since entered an unconditional appearance.
The court's power to terminate summarily this plaintiff's action, whether the power be exercised in the court's inherent jurisdiction or pursuant to a rule of court must be exercised with "great care ... to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal" (per Barwick CJ in General Steel Industries Inc v The Commissioner for Railways (NSW) (1964) 112 CLR 125 at 130).
In the same case the learned Chief Justice went on to say (at p 130):
"I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed."
General Steel has been followed and applied many times. I note that in Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (Reg) (1997) 188 CLR 241, McHugh J (at p 271 said):
"In General Steel Barwick CJ warned that the power to strike out a pleading must be sparingly exercised; the mere fact that plaintiffs prospects of success are slim is not enough to strike out a pleading."
In Thorpe v The Commonwealth (No 3) (1997) 71 ALJR 767 at p 774, Kirby J said:
"Setting aside, striking out, summarily dismissing or permanently staying proceedings of a litigant who has come to a court of law are self-evidently serious steps. They are to be reserved to a clear case. If there is any doubt a court should err on the side of allowing the claim to proceed."
See also Ha v New South Wales (1996) 70 ALJR 611 at p 613, and Lindon v The Commonwealth (No 2) (1996) 70 ALJR 541 at pp 544-5 - these are further decisions of Kirby J.
Neither party formally challenges the correctness of the relevant law as stated by Barwick CJ.
I turn now to the relevant legislation.
Section 6A of the Workers' Compensation Act1990 relevantly defines "certificate injury". By that section a "certificate injury" for a worker relevantly means an injury (other than a psychiatric or psychological injury) entitling the worker, in the board's opinion, to lump sum compensation of at least 20 per cent of statutory maximum compensation.
I mention this because the notice of assessment given to the plaintiff expressly stated that his injury was not a certificate injury.
Section 90 of the Workers' Compensation Act 1990 which appears in "Part 6 - Entitlement to Compensation" reads:
"90(1) If in respect of an injury suffered by a worker there is -
(a) an entitlement to compensation under this Act; and
(b) a right of action against the worker's employer, or other person, to recover damages independently of this Act;
a claim for compensation under this Act may be made and proceedings to recover such damages may be taken but an entitlement to such compensation does not exist at any time, or in respect of any period, after judgment for damages is given, or settlement is agreed, in such proceedings.
(2) Sub-section (1) does not limit sections 182B and 182D."
Part 9 of the Workers' Compensation Act1990 is headed "Quantum of Compensation". Division 2 in Part 9 is headed "Compensation (lump sum) for injury resulting in permanent impairment". This division applies if a worker sustains permanent impairment because of injury in relation to which compensation under 'this Act' is payable (see s 129). Division 2 comprises sections 129 to 135 both inclusive.
Sub-section 130(1) provides that a worker who sustains permanent injury because of injury is entitled to lump sum compensation under section 130 for the injury. By sub-s 130(2) the amount of lump sum compensation is the amount worked out having regard to the worker's degree of permanent impairment, the degree of permanent impairment attributable to the injury and the table of injuries. The assessment of the degree of the plaintiff's permanent impairment resulting from his injury on 10 January 1996 was made pursuant to s 130A.
The offer of compensation made to the plaintiff on 1 March 1999 appears to have been in accordance with section 132 of the Workers' Compensation Act 1990 which section is headed "Offer and Payment of Compensation After Assessment". I note sub-s 132(4) which applied because the plaintiff's injury was not a certificate injury. That sub-s read:
"(4) If the worker is entitled to lump sum compensation under s 130 for an injury, other than a certificate injury, the board must -
(a)advise the worker about the choice the worker must make under s182B; and
(b)give the worker a copy of 182A, 182B and 182C."
Part 11 of the Workers' Compensation Act 1990 is headed "Entitlement to Damages Independently of Act". This part comprises ss 182A to 192 (both inclusive).
I now set out ss 182A, 182B, 182C and 182D:
"182A. (1) Sections 182B to 182E apply to a worker who suffers an injury, other than a serious injury, in circumstances creating, independently of this Act, a legal liability in the worker's employer in relation to which the worker's employer is -
(a)indemnified by the board under a policy in relation to the injury; or
(b)required by this Act to be so indemnified.
(2) In subsection (1)-
"injury" does not include an injury in relation to which the employer is required to
provide against the employer's legal liability by-
(a)another Act; or
(b)a law of another State, the Commonwealth or another country.
"serious injury" of a worker means a certificate injury or an injury resulting in the
worker's death.
Worker must make a choice about damages at law in certain cases
182B. (1) A worker to whom lump sum compensation is payable under Part 9, Division 2 for an injury is not entitled to both-
(a)lump sum compensation for the injury; and
(b)damages at law for the injury.
(2) The worker must choose between accepting lump sum compensation offered under this Act and seeking damages at law.
(3) The worker must give the board notice of the worker's choice in the approved form.
(4) If the worker fails to give the board notice of the worker's choice before the worker seeks damages at law, the worker is taken to have made a choice to reject lump sum compensation for the injury.
(5) The worker cannot change the worker's choice after-
(a)notice of it is given to the board; or
(b)it is taken to have been made under subsection (4).
(6) The worker is taken to seek damages at law for the injury when the worker-
(a)seeks to negotiate a damages settlement with the board; or
(b)starts proceedings at law for damages.
Consequences of choosing to seek damages at law
182C. (1) This section applies if the worker is not entitled to, or rejects, lump sum compensation under this Act for an injury and seeks damages at law for the injury.
(2) The worker's entitlement to compensation under this Act stops and the following rules in relation to costs in the worker's proceeding for damages apply.
(3) No order as to costs, other than an order allowed under this section, is to be made by the court in the proceeding, unless the board certifies that the worker's injury is a serious injury.
(4) If a party to the proceeding makes an offer of settlement that is refused and the court later awards damages to the worker, the court must, in the following circumstances, make the order about costs provided for-
(a)if the amount of damages awarded is equal to or more than the worker's final offer - an order that the defendant pay the worker's party and party costs from the day of the final offer;
(b)if the amount of damages awarded is equal to or less than the defendant's final offer-an order that the worker pay the defendant's party and party costs from the day of the final offer.
(5) If the award of damages is less than the worker's final offer but above the defendant's final offer, subsection (3) applies.
(6) An order as to costs for an interlocutory application may be made only if the court is satisfied that the application has been brought because of unreasonable delay on the part of one of the parties.
(7) If an entity other than the worker's employer or the board is joined as a defendant in the proceeding, the court may make an order as to costs in favour of, or against, the entity according to the proportion of liability of the defendants and the justice of the case.
(8) The court may make an order for costs against the worker's employer or the board under subsection (7) only if-
(a)the order is in favour of the entity; and
(b)the worker's employer or the board joined the entity as a defendant.
Access to common law damages if no previous offer of lump sum compensation made
182D. (1) A worker who has not received an offer of lump sum compensation under section 132 may seek damages at law for an injury suffered after the commencement only if the board gives the worker a certificate under this section.
(2) The worker must apply in the approved form to the board for a certificate.
(3) The board may only, and must, give the certificate if-
(a)the board decides the injury is an injury within the meaning of this Act and was suffered after the commencement; and
(b)the degree of the worker's permanent impairment resulting from the injury has been assessed in the way mentioned for the injury under section 130A(1)
(4) However, the board may issue the worker with a conditional certificate if-
(a)the degree of the worker's permanent impairment is not agreed or has not been decided by a tribunal; or
(b)there is an urgent need to bring proceedings for damages.
(5) If a conditional certificate is given, the worker may start proceedings at law for damages for the injury, but the proceedings are stayed until the board makes the certificate unconditional.
(6) The board must make the certificate unconditional when it is satisfied about the matters mentioned in subsection (3).
(7) If the board is unable to make decision about a matter mentioned in subsection (3)(a) or (b), the board must-
(a)refer the matter to a medical assessment tribunal for decision; and
(b)in an appropriate case, ask the tribunal to assess the worker's degree of permanent impairment resulting from the injury.
(8) If the board makes a decision under subsection (3)(a), a worker aggrieved by the decision may appeal the decision in the way, and within the time, prescribed under the regulations.
(9) A decision of a medical assessment tribunal on a reference under this section is final and cannot be questioned in any proceedings whatever before a tribunal or a court."
I refer first to s 11 of the Limitation of Actions Act 1974 which reads:
"11. Notwithstanding any other Act or law or rule of law, an action for damages for negligence, trespass, nuisance or breach of duty (whether the duty exists by virtue of a contract or a provision made by or under a statute or independently of a contract or such provision) in which damages claimed by the plaintiff consist of or include damages in respect of personal injury to any person or damages in respect of injury resulting from the death of any person shall not be brought after the expiration of 3 years from the date on which the cause of action arose."
In the present case the plaintiff's action has been brought within the three years from 10 January 1996, which is the date on which his cause of action arose. If it were not for the provisions of the Workers' Compensation Act 1990 on which Mr Douglas SC, who appears for the applicant defendant, relies, the action is lawfully brought.
In Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, McHugh J (with whose reasons Dawson J agreed) stated (at pp 552-3) four broad rationales perceived by courts and commentators for the enactment of limitation periods. They are:
"First, as time goes by, relevant evidence is likely to be lost
Second, it is oppressive, even 'cruel', to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed.
Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them ...
The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible." (see pp 552 and 553)His Honour further said, at p 553:
"In enacting limitation periods, legislatures have regard to all these rationales. A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated."
At p 555, His Honour said:
"Legislatures enact limitation periods because they make a judgment, inter alia, that the chance of an unfair trial occurring after the limitation period has expired is sufficiently great to require the termination of the plaintiff's right of action at the end of that period."
Mr Douglas SC's submissions as to striking out, if correct, have the effect in the present case of converting an action from one lawfully brought within the time limit chosen by the legislature to one which may not be lawfully brought because the plaintiff, before he issued the writ claiming damages for his injuries had not obtained from the Workers' Compensation Board of Queensland a certificate or a conditional certificate under s 182D of the Workers' Compensation Act1990.
He argues that in the present case the plaintiff could have and should have sought and obtained a conditional certificate pursuant to s 182D(4) before issuing the writ.
Mr Kent, counsel for the plaintiff rejects this argument.
One of the difficulties in s 182D is the use in sub-s 182D(1) of the words "seek damages at law for an injury" followed later in the same section by the following words:
(i) "bring proceedings for damages" - sub-s 182D(4)(b)
(ii)"start proceedings at law for damages for the injury" - s182D(5)
Again, immediately before sub-s 182E there appears in heavy type 'Decision not to seek damages at law reviewable in certain circumstances'. Once more the phrase 'seek damages at law' is used by the legislature. For reasons which will later appear these apparent difficulties can be resolved.
The applicant defendant's argument, as evidenced by the letter from its solicitors received on 6 May 1999 (see para 22 ante) was that the writ issued on 6 January 1999 was a nullity. However, on the hearing of the summons its stance had altered in that the applicant defendant by Mr Douglas SC then submitted:
1. The defendant's application seeks dismissal of the action on the footing that there is a ground of defence, in respect of which the facts are not in dispute, as a consequence of which no cause of action is made out.
2. Specifically, prior to the commencement of the action the plaintiff, as he was obliged to do, failed to obtain a certificate from Work Cover pursuant to s 182D of the Workers' Compensation Act1990 as amended from 1 January 1996.
It was common ground that the injury suffered by the plaintiff was not a 'serious injury' because no certificate to that effect had been issued by Work Cover (see s 6 Workers' Compensation Act1990) and in any event the medical evidence from Dr Morgan showed that the level of disability did not amount to 20 per cent permanent partial disability.
Mr Douglas SC further submitted that the Workers' Compensation Act1990 properly construed requires the issue of a s 182D certificate as a mandatory procedural step for the commencement of proceedings where no lump sum offer has been made.
It was common ground that as at 6 January 1999 the date of issue of the writ no lump sum offer had been made.
Mr Douglas SC submitted that the plain meaning of s 182D(1) is that the plaintiff worker seeking damages at law is required to obtain the board's certificate under s 182D anterior to the commencement of proceedings.
He relies on the decision of the Court of Appeal in Young v Keong (1998) 27 MVR 465. That case concerned s 37(1) and s 39(5) of the Motor Accident Insurance Act 1994 of the State of Queensland. Section 37(1) relevantly read:
"Before bringing an action in a court for damages for personal injury ... a claimant must give written notice of the claim to the insurer ... against which the action is to be brought - ... ."
Sub-s 39(5) relevantly read:
"A claimant may bring a proceeding in a court for damages based on a motor vehicle accident claim only if -
(a) the claimant has given notice to an insurer who may be liable on the claim under the statutory insurance scheme as required under this division - ..."
In that case the proceedings were commenced within the limitation period prescribed by the Limitation of Actions Act 1974 and the Court of Appeal held that sub-s 37(1) and 39(5) were in terms mandatory and that legal proceedings could not be commenced where there had been non-compliance.
Young v Keong appears to be distinguishable from the present case primarily because in the instant case s 182D(1) uses the phrase "may seek damages at law" and does not use phrases such as "bringing an action in a court for damages" (s 37(1) and "a claimant may bring a proceeding in a court for damages" (s 39(5)). Nevertheless Young v Keong is important because it was there held that legal proceedings which had been commenced within the limitation period could not be commenced because there had been non-compliance with mandatory terms of the relevant legislation. I do not discard the binding force of Young v Keong - as will later appear.
The case before me requires interpretation of "seek damages at law for an injury" appearing in sub-s 182D(1) and further whether compliance with that phrase is mandatory.
I should first say that s 182D prima facie appears to apply to the present plaintiff. The heavy print immediately preceding s 182D reads:
"Access to common law damages if no previous offer of lump sum compensation made."
As at 6 January 1999 no previous offer of lump sum compensation had been made to the plaintiff.
In my view, the phrase "seek damages of law for injury" bears a meaning such that "to commence", "to bring" or "to start proceedings at law for damages" is not an essential pre-requisite to seeking damages in all cases within s 182D. There are two ways in which (within sub-section 182D(1)) a worker can seek damages at law for an injury. They are as set out in s 182B(6) which I shall shortly mention.
The first way is by seeking to negotiate a damages settlement with the Board, the second is by starting proceedings at law for damages.
As to the first way a person can seek damages at law for an injury by writing to the Workers' Compensation Board a letter of demand asking for payment of damages for injury suffered and tortiously caused and seeking to negotiate a figure for those damages on which each side is content to agree - in common parlance - a settlement of the damages sought.
Such a settlement can be achieved without any proceeding at law being commenced, brought or started. Support for the view I have just stated appears in s 182B the heading to which says:
"Worker must make a choice about damages at law in certain cases."
Sub-s 182B(2) reads:
"(2) The worker must choose between accepting lump sum compensation offered under this Act and seeking damages at law."
That sub-section uses the phrase "seeking damages at law" and in sub-s 182B(4) the phrase "seeks damages at law" appears.
In the case of a worker to whom s 182B applies, sub-s 182B(6) contains a definition of "to seek damages at law for the injury". It reads:
"(6) The worker is taken to seek damages at law for the injury when the worker -
(a)seeks to negotiate a damages settlement with the board; or
(b)starts proceedings at law for damages."
This sub-section recognises that the worker [referred to in s 182B] who seeks to negotiate a damages settlement with the board is taken to have sought damages at law for the injury.
It seems to me that although sub-section 182B(6) does not apply to the present case - and this is because no lump sum offer had been made at the time the writ was issued on 6 January 1999 - and because that sub-section specifically refers to "the worker", [my emphasis] the phrase "seek damages at law" should be given a consistent meaning throughout s 182A to s 182E - I therefore adopt the definition in s182B(6) of "seek damages of law for an injury".
Mr Douglas SC has argued that the interpretation which I would give "seek damages at law" appearing in s 182D is incorrect, and must be limited to commencing, bringing or starting proceedings at law.
He refers to sub-sections 182D(4) and (5) respectively which (as I have already pointed out) used the phrases "bring proceedings for damages" and "start proceeding at law for damages" respectively.
The use of the three different phrases in s 182D - "seek damages at law", "bring proceedings for damages" and "start proceedings at law" is initially confusing and certainly does not at first appear to promote the degree of clarity needed by a court before summarily terminating a plaintiff's action.
Mr Douglas SC has submitted that in the present case the requirements of s 11 of the Limitation of Actions Act 1974 and s 182 D(1) can be reconciled by applying s 182D(4).
In my view this latter sub-section must be read in its context and I repeat ss 182D(2) to (5). They read:
"(2) The worker must apply in the approved form to the board for a certificate
(3) The board may only, and must, give the certificate if -
(a)the board decides the injury is an injury within the meaning of this Act and was suffered after the commencement; and
(b)the degree of the worker's permanent impairment resulting from the injury has been assessed in the way mentioned for the injury under s 130A(1)
(4) However, the board may issue the worker with a conditional certificate if -
(a)the degree of the worker's permanent impairment is not agreed or has not been decided by a tribunal; or
(b)there is an urgent need to bring proceedings for damages
(5) If a conditional certificate is given, the worker may start proceedings at law for damages for the injury but the proceedings are stayed until the board makes the certificate unconditional -
(6) The board must make the certificate unconditional when it is satisfied about the matters mentioned in sub-s (3)."
Mr Douglas SC argues that in the present case the respondent plaintiff should, before issuing the writ, have applied to the board for a conditional certificate under s 182D(4)(b) - on the basis that there was an urgent need to bring the action, that urgency being founded on the pending expiry of the time limit prescribed by s 11 of the Limitation of Actions Act 1974.
I note that under sub-s 182D(4) the board had a discretion to issue such a certificate if an application for it were made. In s 182D the right of a worker to apply for such a certificate is implicit but not express.
Mr Douglas SC further argues that in the absence of such an application and such a conditional certificate the action must be struck out.
In light of the definition of "seek damages at law for an injury" which I have adopted the process of seeking damages is in my view one which continues down to the happening of one of the following events:
1.Settlement by agreement between the worker and the board of the damages sought - those damages having been sought by negotiation and settled between the parties without any proceedings at law having been commenced, brought or begun.
2.Settlement following fruitless negotiation followed by proceedings at law being brought, begun or commenced.
3.Settlement following upon proceedings at law begun, brought or commenced (with no negotiation prior to beginning, bringing or commencing such proceedings).
4.The moment of judgment in favour of the successful plaintiff.
In the present case there is no evidence of the plaintiff having sought to negotiate a damages settlement with the board before the writ was issued. Absence of such evidence is hardly surprising given that by 6 January 1999 the outcome of the plaintiff's request for assessment of compensation was not known, and as at 6 January 1999 the plaintiff certainly did not know and arguably the board may not then have known the result of Dr Morgan's assessment. At 6 January 1999, s 132 had not then been complied with in that no offer of lump sum compensation had then been made - nor had other matters therein referred to been complied with. In short there was no compliance by the board with s 132 until early March 1999 and at 6 January 1999 the time for the plaintiff's choice under s 182B had not arisen.
The cluster of ss 182B to 182E which appear in "Part 11 - entitlement to damages independently of Act" have a certain logical sequence.
Section 182B
By this section the worker must make a choice between "accepting lump sum compensation offered under this Act and seeking damages at law" (s 182B(2)). It is implicit in s 182B that the worker will have first received the relevant offer of compensation (refer s 132).
Section 182C
This section applies if the worker is not entitled to or rejects lump sum compensation under the Workers' Compensation Act 1990 for an injury and seeks damages at law for the injury (s 182C(1)). As at 6 January 1999 it was not known whether this section applied to the plaintiff. After 4 March 1999 it did apply but by then the meaning of the words "seeks damages at law" appearing in s 182C(1) had, on the facts of the plaintiff's case, been restricted to meaning "starting, beginning or commencing proceedings at law for damage".
On one view of the events in plaintiff's case, he, the plaintiff was thereby disadvantaged.
Section 182D
This section, as the heavy type preceding it reads, dealt with "Access to common law damages if no previous offer of lump sum compensation made".
Again, as at 6 January 1999 plaintiff had not received an offer of lump sum compensation under s 132 and he had a right to seek damages at law for his injury. By 6 January 1999 the rights of the plaintiff under s 182D had been restricted to starting, commencing or bringing an action at law for damages. He could no longer seek to negotiate a damages settlement with the board and have that settlement arrived at before the limitation period expired. However, and this is important - as at 6 January 1999 he could start proceedings at law for damages only if the board had given him a certificate under s 182D.
Section 182E
This section is immediately preceded by the following words in heavy print:
"Decision not to seek damages at law reviewable in certain circumstances."
Under this section a worker who has chosen under s 182B to accept lump sum compensation might ask the board to consider fresh medical evidence about the worker's injury.
I think the defendant's application has to be resolved by considering the situation as it existed on 6 January 1999.
On that date the plaintiff had not sought to negotiate a damages settlement with the board - whether or not he had done so the board had not, in any event, given the plaintiff a certificate under s 182D - the giving of such a certificate is a necessary precursor to seeking to negotiate.
Thus, the only way remaining for the plaintiff to seek damages at law for his injury was to start proceedings at law for damages. This he did by issuing the writ of 6 January 1999.
In terms of s 182D(1) he could do that only if the board gave him a certificate under s 182D. Such a certificate was not given and on any view of s 182D(1) the obtaining of such a certificate was an essential prerequisite to the issue of the writ.
Once that stage is reached the Court of Appeal decision of Young v Keong (supra) becomes applicable and binding on me. Following that decision I would decide that the terms of s 182D(1) are mandatory and legal proceedings cannot be commenced where the board has not given the plaintiff a certificate under s 182D(1).
Apart from that certificate, which in my view was required to be an unconditional certificate, it was open to the plaintiff to have sought to obtain from the board a conditional certificate pursuant to s 182D(4)(b). Had such a conditional certificate been obtained before 10 January 1999, the plaintiff could lawfully have sought damages at law (s182D(1)) by then issuing the writ of summons not later than 10 January 1999 and thereby starting proceedings.
Unfortunately this was not done and at the end of the day it becomes clear that in the absence of the board giving the plaintiff either an unconditional certificate or a conditional certificate pursuant to s 182D, the plaintiff's writ could not be lawfully issued and there cannot be any doubt that the action begun thereby must fail.
I must say that the decision I have reached gives me no satisfaction. In the present case, there was delay by Work Cover in arranging for the assessment by a doctor, further delay after receipt of that assessment and then finally delay in signing and delivering of the notice of assessment in which one of the choices offered to the plaintiff was illusory - a choice to reject the offer and seek damages for the injury.
The conduct of the board in this case shows that he who sups with the board must sup with a long spoon. (see Brewer's Dictionary of Phrase and Fable (14th Edition) under "spoon") The case also shows the need for lawyers to be aware of the pitfalls in litigation of this type - and especially the provisions of relevant statute law. No longer can a prospective plaintiff seeking damages at law for personal injuries rely on complying with the Limitation of Actions Act1974 only.
It is true that the board, when obtaining the assessment from Dr Morgan and in sending the notice of assessment dated 1 March 1999 has appeared to comply with the requirements of s 132 of the Workers' Compensation Act1990. One of these requirements was to advise the plaintiff about the choice the worker must make under s 182B (see s 132(4)(a)). That choice was between accepting lump sum compensation offered under that Act and rejecting the offer and seeking damages at law (s 182B(2)).
As already pointed out this choice as offered to the present plaintiff was illusory. Nevertheless the plaintiff was given the choice (as required by the statute) - a choice effectively worthless. The matter of estoppel was not raised in argument. It was not open because estoppel "cannot be invoked to negative the operation of a statute" (Beesly v Hollywood Estates Ltd (1960) 2 All ER 314 at 324; (1960) 1 WLR 549 at 561 - per Buckley J - affirmed on appeal (1961) 1 All ER 90; (1961) Ch 105)) (see also "Estoppel by Misrepresentation" Spencer Bowen and Turner (Third Edition) by Turner para 141).
Having said that, I now turn to a summons filed by the plaintiff seeking relief under s 31(2) of the Limitation of Actions Act1974. The plaintiff relied on this application in the event that the defendant succeeded in having the action begun on 6 January 1999 struck out.
The summons filed on 3 June 1999 seeks the following orders:
1.An order pursuant to s 31(2) of the Limitation of Actions Act 1974 that the period of limitation for an action for damages for personal injuries by the applicant against Coles Myer Ltd in respect of damages for personal injuries sustained in the course of his employment with Coles Myer Ltd on 10 January 1996 be extended so that it expires on 9 January 2000.
2.That Coles Myer Ltd pay the applicant's costs of and incidental to this application.
Sub-section 31(2) relevantly reads:
"31(2) Where on application to a court by a person claiming to have a right of action to which this section applies, it appears to the court -
(a)that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action; and
(b)that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation;
the court may order that the period of limitation for the action be extended so that it expires at the end of one year after that date and thereupon for the purposes of the action brought by the applicant in that court the period of limitation is extended accordingly."
I can say at once that there is no doubt that there is evidence to establish the right of action in negligence apart from a defence founded on the expiration of a period of limitation and apart from a s 182D certificate.
The principal issue concerns whether or not the plaintiff has satisfied the requirements of sub-s 31(2)(a).
Sub-section 30(b) of the Limitation of Actions Act 1974 relevantly reads:
"For the purposes of ... sections 31 ......
.......................................................(b)material facts relating to a right of action are of a decisive character if but only if a reasonable person knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing -
(i) that an action on the right of action would (apart from the effect of the expiration of a period of limitation) have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the right of action; and
(ii) that the person whose means of knowledge is in question ought in the person's own interests and taking the person's circumstances into account to bring an action on the right of action."
"Appropriate advice" is defined in s 30(c) as follows:
"For the purposes of .... section 31 .... in relation to facts means the advice of competent persons qualified in their respective fields to advise on the medical, legal and other aspects of the facts as the case may require."
Section 30(d) relevantly provides that for the purposes of s 31:
(d)a fact is not within the means of knowledge of a person at a particular time if but only if-
(i) the person does not at that time know the fact; and
(ii) so far as the fact is capable of being ascertained by the person, the person has before that time taken all reasonable steps to ascertain the fact.
In the present case Mr Kent has submitted that the material fact of a decisive character relating to the right of action was the existence of the offer. In my respectful view this submission is incorrect. What is apparent from the material before me is that there is evidence to establish the right of action in negligence, but in order to pursue that right of action or, to use the words of s 182D of the Workers' Compensation Act 1990, to seek damages for the injury the plaintiff had first to obtain a certificate or a conditional certificate under s 182D before starting proceedings at law by issuing the writ.
In my view, the material fact of a decisive character was the existence of a conditional certificate given by the board to the plaintiff pursuant to s 182D. The existence of the offer was, in my view irrelevant. That this is so is clear from s 182D which is specifically headed "Access to common law damages if no previous offer of lump sum compensation made". The interpretation section - 30(b) - states that material facts relating to a right of action are of a decisive character if, but only if, a reasonable person knowing those facts and having taken the appropriate advice on those facts would regard those facts as showing that action on the right of action would have a reasonable prospect of success.
It is my view that in this case the applicant who was a forklift driver and who could not reasonably have been expected to know of s 182D and the need for the certificate, conditional or unconditional, appears to have obtained appropriate advice from Mr Shepherd in relation to all facts said to constitute the action in negligence other than the fact being the existence of a certificate or conditional certificate required by s 182D. It appears to me that in this case the solicitor who held himself out as a competent person qualified to advise on legal aspects of the facts of the case in negligence, ought (despite the difficulties with s 182D)to have informed the plaintiff of the need to have the certificate or conditional certificate under s 182D before the writ of summons was issued.
So far, I have treated the existence of the certificate under s 182D as a material fact of a decisive character. There is an alternate view and that is that it is not the certificate viewed as a material fact which I must consider but a matter of mixed fact and law viz the certificate (the fact) which results from the application to the board (required by law) for the certificate.
I have come to the conclusion that the plaintiff's application under s 31(2) must fail because:
(a)the existence of the certificate or conditional certificate, if a material fact, was a fact within the plaintiff's means of knowledge before 10 January 1999 - appropriate advice from his solicitor ought have disclosed before that date the need or possible need for the certificate;
(b)the application is not grounded on the certificate as a material fact but rather grounded on mixed fact and law and therefore outside the purview of s 31(2).
The orders I make are:
1.I dismiss the plaintiff's action No 99 of 1999 with costs including the defendant's costs of and incidental to its summons filed 12 May 1999 to be taxed or assessed.
2.I dismiss the plaintiff's summons for extension of time filed 3 June 1999 with costs to be taxed or assessed.