Rosalina Bastolini Thompson v Kimberly-Clark Australia Pty Ltd - [2005] NSWSC 1009

No judgment structure available for this case.

CITATION:
Rosalina Bastolini Thompson v Kimberly-Clark Australia Pty Ltd [2005] NSWSC 1009
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 17/08/05
18/08/05

JUDGMENT DATE :

7 October 2005

JUDGMENT OF:
Patten AJ at 1

DECISION:
See paragraph 31.

LEGISLATION CITED:
Civil Liability Act 2002
Workers Compensation Act 1987
Compensation to Relatives Act 1897
Motor Accidents Compensation Act 1998
Workplace Injury Management and Workers Compensation Act 1998
Workers Compensation Legislation Further Amendment Act No 94 of 2001
Interpretation Act 1987

CASES CITED:
Tokyo Mart Ltd v Campbell & Anor (1988 15 NSWLR 275 Emad Trolley Pty Ltd v Shigar (2003) NSWCA 231
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 72 ALJR 841
Gifford v Strang Patrick Stevedoring 51 NSWLR 606
Workers Compensation Board (Q) v Technical Products Pty Ltd (1988) 165 CLR 644

PARTIES:
Rosalina Bastolini Thompson - Plaintiff (Respondent)
Kimberly-Clark Australia Pty Ltd - Defendant (Appellant)

FILE NUMBER(S):
SC 20183/04

COUNSEL:
Mr D R Toomey - Appellant
Mr I S Judd - Respondent

SOLICITORS:
McClellands - Plaintiff
Hunt & Hunt - Defendant

LOWER COURT JURISDICTION:
Supreme Court (Master)

LOWER COURT JUDICIAL OFFICER :
Master Harrison

- 13 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Patten AJ

7 October 2005

No 20183 of 2004
Rosalina Bastolini Thompson v Kimberly – Clark Australia Pty Ltd.

1 This is an appeal from a judgment of Master Harrison, delivered on14 March 2005. The learned Master dismissed, with costs, an application by the Defendant which, for convenience, I will hereafter refer to as Kimberly- Clark, to strike out the Plaintiff’s Statement of Claim. I will refer to her as Mrs Thompson.

2 Mrs Thompson is the widow of Mark Steven Thompson who died on 22 October 2001 as a result of fatal injuries suffered in the course of his employment with Kimberly-Clark when a restraining door on a baling machine, near where he was standing, blew open under pressure striking him in the chest and abdomen.

3 She brings this action for nervous shock on behalf of herself and she also, as executrix of her husband’s estate, brings this action under the Compensation to Relatives Act, on behalf of herself and the two children of the marriage, Andrew, born 3 April 1990 and Chantelle, born 31 August 1995. She alleges that Kimberly-Clark failed to provide a safe place and system of work, in breach of the duty it owed to Mr Thompson.

4 On 4 February 2003, Judge Neilson, sitting in the Compensation Court, found that Mrs Thompson and her children were wholly dependant for support on Mr Thompson at the time of his death. He ordered the payment of compensation in the sum of $266,800 and, in addition, the payment of continuing weekly amounts in respect of each of the children, in accordance with the provisions of the Workers Compensation Act 1987 (the 1987 Act). The sum of $266,800 was apportioned as to $160,080 in favour of Mrs Thompson, $40,020 in favour of Andrew Thompson and $66,700 in favour of Chantelle Thompson.

5 It was common ground that before commencing this action, Mrs Thompson did not attempt to comply with all of the provisions of Chapter 7 of the Workplace Injury Management and Workers Compensation Act 1998 (the Act). The proceedings before the Master and before me concern the question whether she was required to do so.

6 Chapter 7 of the Act which commenced on 1 August 1998 is headed “Chapter 7, New Claims Procedure”. As a prelude to considering the scheme of the Chapter, it is appropriate that I mention the meanings attributed to several words and phrases which appear in it. The word “claim” is defined in s4 of the Act to mean,” a claim for compensation or work injury damages that a person has made or is entitled to make”. The word “compensation” is in effect defined to mean, any compensation under the 1987 Act, including any monetary benefit. The expression “work injury damages” is defined in s250 as follows:

7 The expression “lump sum compensation” is defined in s4 of the Act to mean “compensation under Division 4 “(compensation for non-economic loss)” of Part 3 of the 1987 Act”. That Division contains s66, entitling an injured worker to claim compensation for permanent impairment, and s67, entitling an injured worker to claim compensation for pain and suffering. It is noteworthy that neither s25 nor s26 of the 1987 Act, which entitle dependants of a deceased worker to seek compensation, fall within Division 4 of Part 3.

8 “Worker” is defined in s4 of the Act as meaning, in effect, a person who has entered into or works under a contract of service. It seems to be common ground that Mr Thompson was a worker within the definition.

9 However, the meaning of the definition of “worker” is extended by s4(2):

10 Provisions of Chapter 7 of the Act, relevant to the issues raised in this matter include in Part 2, Division 2 – “Making a Claim for Compensation or Damages”:

…………………………………………….

s263

(1) All claims for permanent impairment compensation or pain and suffering compensation in respect of an injury must, as far as practicable, be made at the same time.

(2) A legal practitioner or agent who acts for a worker when such a claim is made is not entitled to recover any costs from the worker or the employer in relation to any such claim made later (including such a claim made by later amendment of proceedings) unless there is a good reason for the claim being made later.

…………………………………………..

Part 3 Division 4 is headed “Claims For Lump Sum Compensation and Work Injury Damages”. It contains:

A claim for work injury damages in respect of an injury cannot be made unless a claim for lump sum compensation in respect of the injury is made before or at the same time as the claim for work injury damages.

whichever is the later.

(2A) The determination of a claim cannot be delayed beyond 2 months after the claimant has provided to the insurer all relevant particulars about the claim (that delay being on the basis that the degree of permanent impairment of the injured worker resulting from the injury is not fully ascertainable), unless the insurer has within that 2 month period notified the claimant that the degree of permanent impairment of the injured worker resulting from the injury in not fully ascertainable.

(2B) When the person on whom a claim is made accepts or disputes liability, the person must notify the claimant as to whether or not the person accepts that the degree of permanent impairment of the injured worker resulting from the injury is sufficient for an award of damages.

(3) An offer of settlement is to specify an amount of compensation or damages or a manner of determining an amount of compensation or damages.

(4) ………………………………

(5) ……………………………..

(6) This section does not apply to a claim for work injury damages in respect of the death of a person except as the WorkCover Guidelines may other wise provide.

S315

11 The motion before the Master was supported by the somewhat laconic affidavit of Mr B N McLean, the solicitor for Kimberly-Clark, paragraphs 2 and 3 of which read:

“2. The causes of action on which the Plaintiff relies are work injury damages within the meaning of Section 250 of the Workplace Injury Management and Workers Compensation Act, 1998 (as amended) Act.

3. The Plaintiff has failed to comply with the claims procedures set out in Chapter 7 of the said Act and as a consequence the Defendant seeks an order that the Statement of Claim herein be dismissed and struck out as it has been issued contrary to the provisions of the said Act.”

12 The obvious deficiencies in the evidence actually before the Master in support of Kimberly-Clark’s motion were raised by Mr D R Toomey, counsel for Mrs Thompson, before me. I gave leave to Mr Judd, counsel for Kimberly-Clarke, to file in court a further affidavit of Mr McLean, sworn 18 August 2005. In only slightly less economical terms he deposed:

“1. I am the solicitor for the Appellant/Defendant.
2. I have carried out an examination of my file including all of the documents and instructions received from my client.
3. I am able to say that to the best of my knowledge and belief the Respondent/Plaintiff has not taken any of the following steps:-

a. Made a claim for work injury damages as required by Section 260 of the Workplace Injury Management and Workers Compensation Act 1988.
b. Served a Pre Filing Statement as required by Section 315 of the Workplace Injury Management and Workers Compensation Act 1988.
c. Referred the claim for Mediation as required by Section 318A of the Workplace Injury Management and Workers Compensation Act 1988.

13 In her judgment, after reviewing relevant provisions of the Act and a number of authorities, the learned Master in the penultimate paragraph of her judgment wrote:

“(the Act) makes it clear matters involving work injuries covered by this Act must be attempted to be resolved through a claims process before proceeding to court. The Guidelines and (the Act) do not provide for the dependants of the worker, as defined in (the Act) to make a claim or sign the declaration. The definition of “worker” in (the Act) is clear. There is no reason to impute a further meaning to the term. While it may be a legislative oversight, that dependants of the worker are not included in the class of person who are required to make a claim at the present, it is the worker who must make the claim, and there is no requirement for someone else to make it in the case of the worker’s death. The widow was entitled to file the statement of claim. The defendant’s notice of motion filed 7 September 2004 is dismissed.”

14 Both Mr Toomey and Mr Judd agreed that the Master’s judgment could not be sustained for the reasons she gave. It seems that she overlooked the reference to “extended meaning of injured worker”, in s4 (2) of the Act. However, Mr Toomey submitted that the actual decision of the Master could be otherwise supported. His principal submission was that Chapter 7, as a matter of construction, cannot apply to Mrs Thompson’s action because it was, and is, impossible for her to comply with s280 A. In support of that submission, he pointed out that she has no right to claim “lump sum compensation” as that expression is defined. It seems to me that she, indeed, had no such right, at least under s66 and s67 of the Act, as they stood at the time of Mr Thompson’s death.

15 As I have indicated, Mrs Thompson pleads two quite separate causes of action, namely the statutory cause of action under the Compensation to Relatives Act and the common law action for nervous shock as modified by statute. I will need to consider the matter separately in relation to each cause of action as the same result will not necessarily apply. In both cases, however, I will need to have regard to s33 of the Interpretation Act and prefer an interpretation that will promote the purpose or object underlying the Act. Section3 of the Act relevantly provides :

· Prompt treatment of injuries, and

· Effective and proactive management of injuries, and

· Necessary medical and vocational rehabilitation following injuries,

(c) to provide injured workers and their dependants with income support during incapacity, payment for permanent impairment or death, and payment for reasonable treatment and other related expenses,

16 One difficulty with Mr Toomey’s submission in relation to Mrs Thompson’s claim under the Compensation To Relatives Act, is that such an action not only seems to fall within the purpose of the Act but is, in my view, expressly contemplated by the definition of “work injury damages”. In light of that definition, it is difficult to accept that the legislature did not intend that a claim under the Compensation to Relatives Act would be regulated by Chapter 7 of the Act.

17 Such a conclusion is, in my view, reinforced by s281(6) and the fact that , to the extent that Chapter 7 permits actions in a court of competent jurisdiction they are governed by Part 4 of the 1987 Act, which, in turn, also expressly contemplates actions under the Compensation to Relatives Act (see for example S151A(3) and s151G(2)). In that situation, as it seems to me, s280 A should, if possible, be interpreted in a way which will permit effect to be given to the statute’s obvious purpose. There is much authority on that subject. I quote for instance a passage from the judgment of Mahoney JA (in which McHugh and Clarke JJA agreed) in Tokyo Mart Pty Ltd v Campbell & Anor (1988) 15 NSWLR 275 at 283:

“Legislative inadvertence may consist, inter alia, of either of two things. The draftsman may have failed to consider what should be provided in respect of a particular matter and so fail to provide for it. In such a case, though it may be possible to conjecture what, had he adverted to it, he would have provided, the court many not, in my opinion, supply the deficiency. In the other case, the legislative inadvertence consists, not in a failure to address the problem and determine what should be done, but in the failure to provide in the instrument express words appropriate to give effect to it. In the second case, it may be possible for the court, in the process of construction, to remedy the omission.

In Wentworth Securities Ltd v Jones (1980) AC 74 at 105 – 106, Lord Diplock said:

“My Lords, I am not reluctant to adopt a purpose construction where to apply the literal meaning of the legislative language used would lead to results which would clearly defeat the purposes of the Act. But in doing so the task on which a court of justice is engaged remains one of construction; even where this involves reading into the Act words which are not expressly included in it. Kammins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd (1971 AC 850 provides an instance of this; but in that case the three conditions that must be fulfilled in order to justify this course were satisfied. First, it was possible to determine from a consideration of the provisions of the Act read as a whole precisely what the mischief was that it was the purpose of the Act to remedy; secondly, it was apparent that the draftsman and Parliament had by inadvertence over looked, and so omitted to deal with, an eventuality that required to be dealt with if the purpose of the Act was to be achieved; and thirdly, it was possible to state with certainty what were the additional words that would have been inserted by the draftsman and approved by Parliament had their attention been drawn to the omission before the Bill passed into law. Unless this third condition is fulfilled any attempt by a court of justice to repair the omission in the Act cannot be justified as an exercise of its jurisdiction to determine what is the meaning of a written law which Parliament has passed. Such an attempt crosses the boundary between construction and legislation. It becomes a usurpation of a function which under the constitution of this country is vested in the legislature to the exclusion of the courts.”

18 More recently the relevant principles were discussed by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 72 ALJR 841. In their joint judgment McHugh, Gummow, Kirby and Hayne JJ said at paragraph 69 and following:

Commissioner for Railways (NSW) v Agalianos

19 There is, on the face of it, a difficulty with s280A of the Act compounded by the fact that so far as was put to me, there are no WorkCover guidelines which would assist a person in the position of Mrs Thompson to make a claim within s260. This seems a significant oversight. I reject the submission by Mr Judd that the claim for death benefits under s25 of the 1987 Act, which presumably was made by Mrs Thompson under s65 of the Act, constituted a claim for the purposes of s260. Section 260 seems to make it clear that the claim there referred to is expressly a claim which falls within the definition of “work injury damages”. A claim for a death benefit under s25 of the 1987 Act would not qualify for that purpose.

20 It is not altogether easy to understand why the legislature did not include death claims under s25 and s26 of the 1987 Act in the reference in s280A. The reason is probably to be found in the fact that to a large extent Chapter 7 of the Act is focussed on the medical assessment of degrees of impairment, a subject obviously irrelevant when the worker is dead. Moreover, any benefit received by a dependant under s25 of the 1987 Act must be deducted from damages awarded under the Compensation to Relatives Act. (Section 151 A (3) of the 1987 Act)

21 In the result the purposive interpretation of s280A, which I favour, is that it should be deemed to have no application where there is no right to seek lump sum compensation under s66 or s67 of the !987 Act.

22 In my opinion Mrs Thompson was required by Chapter 7 of the Act to comply with such of its provisions as applied to her proposed action. In particular, she was obliged to give a Notice of Claim and to serve a pre-filing statement. The question then arises as to the effect of such non-compliance upon the institution and maintenance of these proceedings. In my opinion, the law upon the subject is clear. It seems to me that the relevant provisions of the Act are indistinguishable in substance from those in the Motor Accidents Compensation Act discussed by the Court of Appeal in Emad Trolley Pty Ltd v Shigar (2003) NSWCA 231. That was a case in which a plaintiff had commenced proceedings contrary to s108 (1) of the Motor Accidents Compensation Act. The section provided that a claimant was not entitled to commence court proceedings against another person in respect of a claim unless certain certificates had been issued by claims assessors. In the course of her judgment McColl JA (with whom Meagher JA and Hodgson JA agreed) said at paragraphs 77 and 78:

MAC Act

23 It follows, in my opinion, that Mrs Thompson’s Statement of Claim, in so far as it pleads a cause of action under the Compensation to Relatives Act, is invalid and should be struck out.

24 Different considerations, however, I think, apply to the action for mental or nervous shock although, if Mrs Thompson’s action proceeds, there may be difficult questions as to whether Part 5 of the 1987 Act on the one hand, or the Civil Liability Act on the other hand, applies. The decision of the Court of Appeal in Gifford v Strang Patrick Stevedoring 51 NSWLR 606 suggests that the former is the position, although the question does not seem to have been argued and, of course, the case was decided before the enactment of the Civil Liability Act and before the very significant amendments made to Part 5 of the 1987 Act by such statutes as the Workers Compensation Legislation Further Amendment Act No 94 of 2001.

25 However, the only matter before me is whether Chapter 7 of the Act applies to Mrs Thompson’s claim for nervous shock. That involves the consideration of whether her claim falls within the definition of “work injury damages” within s250.

26 Attributing to the phrase “in respect of”, the meaning “in relation or reference to” (See Macquarie Dictionary 3rd edition published by Macquarie Library Pty Ltd), it does not seem to me that Mrs Thompson’s action, for nervous shock falls within the definition. She sues in respect of the injury which she suffered, not in relation to the injury which her late husband suffered, nor in relation to his death. Indeed, she would have been entitled under the common law to bring the action if her husband had been neither injured nor killed, but merely put in peril. Moreover the matter is not devoid of relevant authority.

27 A somewhat similar problem was before the High Court in Workers Compensation Board (Q) v Technical Products Pty Ltd (1988) 165 CLR 644. I take the facts and the issue for determination from the joint judgment of Wilson and Gaudron JJ at P645:

“The material sections of the Act are concerned with the protection of workers and their dependants in respect of injury suffered by the worker in the course of his employment. It is to that end that s. 8(1) obliges every employer to insure and to keep himself insured with the Board against all sums for which he may become liable to pay to the worker or his dependants as compensation or damages. It would be alien to that purpose for an employer to be obliged to insure with the Board against liability to any person at all for negligence in respect of an injury suffered by a worker. Such an obligation would not necessarily serve to protect the worker or his dependants in any way at all. In these circumstances, the relevant phrase in s. 8(1) should bear its primary meaning. “

“The phrase "damages in respect of that injury" in s. 8(1)(b) is clearly a reference to "damages in respect of injury to a worker". The natural meaning of the expression is, therefore, damages payable to a worker and assessed by reference to his injury. So construed, the expression would exclude damages for nervous shock to a person other than a worker, not only because such damages are payable to a person other than the worker, but also because the damages are measured by the extent of the nervous shock and its consequences and not by the extent of the injury causing the nervous shock and its consequences: see State Government Insurance Office (Q.) v Crittenden, per Windeyer J. It was conceded by the employer that the reference to "damages in respect of that injury" in s. 8(1)(b) is apt to cover damages payable to a worker and assessed by reference to his injury, but it was said that it is also apt to cover damages payable to another and assessed by reference to injury to that other and should be read as covering both categories. But it seems to us that if the expression naturally refers to the first category of damages, as it clearly does, it cannot easily be read at the same time as a reference to the second. Moreover, to read the expression as referring to damages for nervous shock to a third party occasioned by injury to a worker gives rise to an anomaly. Nervous shock may be caused not only by injury to another but also by placing another in peril. Damages awarded in the latter situation would, where the person placed in peril was a worker, be for breach of the same duty of care, but would clearly not be covered by s. 8(1)(b). “

“The most that can be drawn from these decisions dealing with differently worded provisions is that the use of the phrase "in respect of" does not, of itself, extend the meaning of an expression such as "damages in respect of injury to any worker" so as to include damages payable to a person other than the worker. The employer was unable to point to anything in this case which would justify giving an extended meaning to the expression save for s. 4 of the Act, which authorizes the Board to carry on the business of accident insurance. That, of itself, is insufficient to lead to the conclusion sought by the employer. The general context of ss. 8(1) and 9A is that of an Act with the object of providing benefits to injured workers and their dependants. There is nothing in the scope of its provisions which would warrant giving the words "damages in respect of that injury" in s. 8(1)(b) any meaning other than that which they naturally bear.”

28 There is nothing in the Act itself which, in my opinion, points to an intention by the legislature to include claims for nervous shock in the definition of work injury damages. Nor is there any relevant reference in either the Minister’s second reading speech or the report of the Hon T W Sheahan, which preceded the Act. In the result, I have reached the conclusion that a claim for nervous shock made by a third party, that is someone outside the employer/employee relationship, does not fall within Chapter 7.

29 The appeal should be upheld in part. As each party has been more or less successful in approximately equal measure, my provisional view is that each party should pay her or its own costs before the Master and before me. However, I will formally reserve costs and give the parties leave, if they cannot agree, to re-list the matter for argument by arrangement with my Associate.

30 In case there is any difficulty in implementing the orders I intend to make, I will give both parties liberty to apply.

31 I make these orders:

I CERTIFY THAT THIS AND THE PRECEDING 16 PAGES CONSTITUTE A TRUE COPY OF THE REASONS FOR JUDGMENT OF ACTING JUSTICEGE PATTEN DELIVERED HEREIN.

………………………………..

ASSOCIATE

13/10/2005 - Text of judgment omitted - Paragraph(s) 1 - 31

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Citations

Rosalina Bastolini Thompson v Kimberly-Clark Australia Pty Ltd [2005] NSWSC 1009

Most Recent Citation

Kathy Craddock v Bluescope Steel (AIS) Pty Limited [2006] NSWSC 311

Cases Citing This Decision

2

Kimberly-Clark Australia Pty Ltd v Thompson [2006] NSWCA 264

Kathy Craddock v Bluescope Steel (AIS) Pty Limited [2006] NSWSC 311

Cases Cited

4

Statutory Material Cited

7

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28

Emad Trolley Pty Ltd v Shigar [2003] NSWCA 231

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 53

CITATION:	Rosalina Bastolini Thompson v Kimberly-Clark Australia Pty Ltd [2005] NSWSC 1009 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	17/08/05 18/08/05
JUDGMENT DATE :	7 October 2005
JUDGMENT OF:	Patten AJ at 1
DECISION:	See paragraph 31.

LEGISLATION CITED:	Civil Liability Act 2002 Workers Compensation Act 1987 Compensation to Relatives Act 1897 Motor Accidents Compensation Act 1998 Workplace Injury Management and Workers Compensation Act 1998 Workers Compensation Legislation Further Amendment Act No 94 of 2001 Interpretation Act 1987
CASES CITED:	Tokyo Mart Ltd v Campbell & Anor (1988 15 NSWLR 275 Emad Trolley Pty Ltd v Shigar (2003) NSWCA 231 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 72 ALJR 841 Gifford v Strang Patrick Stevedoring 51 NSWLR 606 Workers Compensation Board (Q) v Technical Products Pty Ltd (1988) 165 CLR 644
PARTIES:	Rosalina Bastolini Thompson - Plaintiff (Respondent) Kimberly-Clark Australia Pty Ltd - Defendant (Appellant)
FILE NUMBER(S):	SC 20183/04
COUNSEL:	Mr D R Toomey - Appellant Mr I S Judd - Respondent
SOLICITORS:	McClellands - Plaintiff Hunt & Hunt - Defendant

LOWER COURT JURISDICTION:	Supreme Court (Master)
LOWER COURT JUDICIAL OFFICER :	Master Harrison