Ta v Lucky Import and Export Co Pty Ltd - [2001] WADC 151

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: TA -v- LUCKY IMPORT AND EXPORT CO PTY LTD [2001] WADC 151

CORAM: FENBURY DCJ

HEARD: 6 MARCH 2001

DELIVERED : 26 JUNE 2001

FILE NO/S: CIV 3628 of 1999

BETWEEN: VIEN CAO TA
Plaintiff
AND
LUCKY IMPORT AND EXPORT CO PTY LTD
Defendant

Catchwords:

Negligence - Damages - Employer/employee - Plaintiff failed to reach statutory threshold - Whether finding means employer not liable for purposes of s 91 - Application for costs and other orders

Legislation:

Workers' Compensation and Rehabilitation Act 1981, s 91 amd s 67

Result:

Application dismissed

Representation:

Counsel:

Plaintiff: Mr B L Nugawela
Defendant: Ms B Mangan

Solicitors:

Plaintiff: Friedman Lurie Singh
Defendant: Phillips Fox

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

Nil

Case(s) also cited:

Caffarella v Joseph Lucas (Aust) [1978] VR 227
Caravidas v Holeproof Ltd [1964] VR 146

FENBURY DCJ: The plaintiff sustained injury at his place of employment on 30 April 1998. He commenced proceedings against his employer by way of an action for damages for negligence which was tried in September last year and resulted in a judgment delivered on 7 November 2000. As to the issue of liability, findings were made in favour of the plaintiff.
As to the issue of damages the plaintiff was required to prove that his disability was a serious disability within the meaning of s 93D of the Workers' Compensation and Rehabilitation Act 1981 before he could take an award. It was put this way at par 141 of the judgment:
"The prescribed amount for the purposes of s 93D at the relevant time was the sum of 'one hundred and twenty two thousand dollars ‑ odd' (325). Thus unless the quantum of future pecuniary loss exceeds this amount then the plaintiff will receive no damages in the action."
In par 175 of the judgment an assessment of future pecuniary loss in the sum of $62,758 was made which obviously was well below the threshold.
Consequently, pursuant to s 93D of the Act, damages could not be awarded to the plaintiff.
The Court went on to assess damages under other heads for the benefit of the parties should this matter be taken further.
The plaintiff now seeks orders in terms of a minute which is in the following terms:
"1.The plaintiff's claim for damages be dismissed.
2.The defendant pay the plaintiff compensation payable pursuant to s 67 and/or s 91 of the Workers' Compensation and Rehabilitation Act 1981 as amended in the following terms:
2.1Future workers' compensation weekly payments $50,000 (or up to the prescribed amount).
2.2Future medical treatment $5,000 (or up to the prescribed amount).
2.3Second Schedule in respect of 10 per cent loss of function of right arm at or above the elbow $9,432.90.
2.4Second Schedule in respect of 5 per cent loss of function of right arm below the elbow (wrist injury) $4,192.40.
Total $68,625.30.
3.There be no orders as to costs in the action."
I shall deal firstly, and very briefly, with the plaintiff's assertion that s 67 of the Workers' Compensation and Rehabilitation Act 1981 ("the Act") has relevance to the order sought in par 2 of the minute.
Section 67 is in the following terms:
"Lump sum in redemption of weekly payments
1.Where weekly payments for a permanent total or permanent partial incapacity resulting from a disability other than mesothelioma have continued for not less than six months, the liability for the incapacity is to be redeemed by the payment of a lump sum if ‑
(a)the worker and the employer agreed to the redemption and on the amount of the lump sum; and
(b)a memorandum of the agreement is registered under Division 7."
It can immediately be seen that this section only has application where agreement is reached between the worker and the employer. No such agreement has been reached between the plaintiff and the defendant in this case.
I accept counsel for the plaintiff's submission at p 372 of the transcript that:
"The reference to Section 67 might be entirely irrelevant and misleading. It is not Section 67 that confers jurisdiction in this Court. It is Section 91."
The plaintiff relies on s 91 of the Act which reads as follows:
"If an action is brought to recover damages independently of this Act, and it is determined in such action that the disability is one for which the employer is not liable in such action, but that he would have been liable to pay compensation under this Act, the Court in which the action is tried shall assess that compensation, or refer the assessment of the compensation to the Directorate, and shall deduct from that compensation all the costs which have been caused by the plaintiff bringing the action, instead of taking proceedings under this Act, and shall enter judgment accordingly." (My bold).
In short the plaintiff asserts that the Court's decision that the plaintiff has failed to prove the prescribed amount of damages, resulting as it did in no award of damages, amounts to a determination in the plaintiff's action to recover damages independently of the Act:
"…that the disability is one for which the employer is not liable in such action" (s 91).
The plaintiff proved negligence in the action before the Court. The plaintiff was therefore entitled to damages. The fact that he did not obtain an award of damages was because the amount assessed failed to reach the prescribed figure. It was not because of any flaw in the cause of action. The employer was liable for the plaintiff's disability. But because of the legislation the plaintiff was not entitled to an award for his injuries and loss.
In my view it cannot be said that the plaintiff's action for damages brought in the District Court resulted in a determination that his disability was one for which the employer was not liable in that action. In my view this section exists to provide relief for those injured workers who fail to prove negligence or breach of statutory duty when they commence their action in the District Court. The plaintiff was not one of those.
In such cases s 92 of the Act provides for a right of election as to whether the plaintiff have judgment or discontinue the action.
The defendant's counsel referred to a case of Ivanhoe Gold Corporation Ltd v Symonds a decision of the High Court of Australia on appeal from the Full Court of the Supreme Court of Western Australia, reported in 1906 (4 CLR 642). That case dealt with s 9 of the Workers' Compensation Act WA, 1902 No 5 which stated as follows:
"If, within the time limited by Section 11, an action is brought to recover compensation, independently of this Act, and it is determined in such action that the injury is one for which the employer is not liable in such action, but that he would have been liable to pay compensation under this Act, the Court in which the action is tried shall assess such compensation and shall deduct therefrom all the costs which have been caused by the plaintiff bringing the action instead of taking proceedings under this Act, and shall enter judgment accordingly."
Griffiths CJ at p 653, as to the operation of s 9, said as follows:
"…so regarded, it follows that in all cases to which Section 9 applies the Court is expressly directed (ie at the instance of any party entitled to invoke its jurisdiction) to proceed to assess compensation.
It also follows that every such action includes in effect, or carries in gremio, a claim for compensation under the Act as an alternative claim which the Court is required to dispose of in the action, and further, that, if the original claim fails, the whole action is not disposed of until the alternative claim has been dealt with."
At p 60 Barton J said:
"Looking at the whole scope of the Act, its purpose is to enable the worker, in spite of difficulties, to obtain those rights so long as he has adopted the procedure laid down. Then we have Section 9, designed, as I think, to secure him compensation assessed under the Act where he would have succeeded by taking advantage of it instead of mistakenly pursuing another remedy."
As counsel for the defendant pointed out, the employer has never denied the plaintiff's entitlement as a worker to workers' compensation under the Act. The employer's liability under the Act was always accepted by the employer. The plaintiff's remedies are set out in s 92 and he has a right of election either to move for judgment or to elect to discontinue and continue with his remedies under the Workers' Compensation Act.
I agree with those submissions.
In my view it is appropriate to make orders in this case suggested in the defendant's minute of proposed orders and accordingly I make the following orders:
1.The plaintiff's claim against the defendant be dismissed.
2.Judgment be entered for the defendant.
3.The plaintiff pay the defendant's costs of the action.