Trac v Fero Reinforcing Pty Ltd

Case [2019] WADC 115

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   TRAC -v- FERO REINFORCING PTY LTD [2019] WADC 115

CORAM:   LEMONIS DCJ

HEARD:   8 FEBRUARY 2019

DELIVERED          :   19 AUGUST 2019

FILE NO/S:   CIV 3905 of 2016

BETWEEN:   DONG VINH TRAC

Plaintiff

AND

FERO REINFORCING PTY LTD

Defendant


Catchwords:

Trial of preliminary issues - Effect on worker's election to retain the right to damages where the assessment of worker's degree of impairment is not carried out in accordance with Workers' Compensation and Injury Management Act 1981

Legislation:

Interpretation Act 1984 (WA)
Workers' Compensation and Injury Management Act 1981 (WA)
Workers' Compensation and Injury Management Regulations 1982 (WA)

Result:

The plaintiff is entitled to bring the proceedings

Representation:

Counsel:

Plaintiff : Mr D M Bruns
Defendant : Mr G R Hancy

Solicitors:

Plaintiff : Separovic Injury Lawyers
Defendant : Kott Gunning

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

Australian Crime Commission v Marrapodi [2012] WASCA 103

Clone Pty Ltd v Players Pty Ltd (in Liquidation) (Receivers & Managers Appointed) [2018] HCA 12

Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543

Dossett v TKJ Nominees Pty Ltd [2003] HCA 69; (2003) 218 CLR 1

Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30

Hewitt v Benale Pty Ltd (2002) 27 WAR 91

IW v The City of Perth (1997) 191 CLR 1

Khoury v Government Insurance Office of New South Wales (1984) 165 CLR 622

Mohammadi v Bethune [2018] WASCA 98

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

Re Lawrence; Ex parte Goldbar Holdings Pty Ltd (1994) 11 WAR 549

Re Monger; Ex parte Cross [2004] WASCA 176

Re Monger; Ex Parte Cross [2004] WASCA 176

Re Monger; Ex parte TNT Australia Pty Ltd [2002] WASCA 223

Thomas Peacock & Sons Pty Ltd v Abreu [2013] WASCA 19

LEMONIS DCJ:

  1. These proceedings came before me on 8 February 2019 for the trial of preliminary issues pursuant to the order of Registrar Kingsley made on 19 October 2018.

  2. The plaintiff (Mr Trac) was employed by the defendant (Fero Reinforcing) as a machine operator.[1]  While at work, Mr Trac sustained an injury to his left hand.[2]  Mr Trac has brought these proceedings against Fero Reinforcing claiming damages caused by Fero Reinforcing's negligence and/or breach of statutory duty. 

    [1] Paragraphs 1 and 2.3 of statement of claim; pars 1 and 2 of amended defence.

    [2] Paragraph 3 of statement of claim; Par 3 of amended defence.

  3. The court's jurisdiction to award damages to Mr Trac is constrained by the operation of the Workers' Compensation and Injury Management Act1981 (WA) (Workers' Compensation Act). Under s 93K(4) of the Workers' Compensation Act, an injured worker can only be awarded common law damages against an employer if the worker elects to retain the right to seek the damages.[3]  A worker can only make such an election where the worker's degree of impairment has been agreed with their employer, or…

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AGLC
Trac v Fero Reinforcing Pty Ltd [2019] WADC 115
Case
[2019] WADC 115
Decision Date

CaseChat Overview and Summary

Trac v Fero Reinforcing Pty Ltd concerns a dispute over the assessment of a worker's degree of impairment under the Workers' Compensation and Injury Management Act 1981 and its effect on the worker's right to elect to retain the right to seek damages for personal injury. The case was heard in the District Court of Western Australia. The primary legal issue before the court was whether the statutory provisions governing the assessment of a worker's degree of impairment and the process for electing to retain the right to seek damages abrogated important common law rights, and whether the statutory regime could be interpreted in a way that would render the election of the worker ineffective if the assessment was not carried out in accordance with the Act.

The court examined the statutory provisions and relevant regulations to determine the legislative intent and the consequences of a non-compliant assessment. The court held that the statutory provisions should not be construed as abrogating important common law rights, privileges, and immunities unless there were clear words or a necessary implication to that effect. The court emphasised that the rights of a worker to claim for personal injury caused by negligence are important common law rights. It was noted that while it is generally impermissible to refer to delegated legislation in the construction of an Act, it was useful here to refer to the Workers' Compensation Regulations for the purposes of ascertaining the legislative scheme. The court found that the statutory regime did not abrogate the common law rights of the worker to elect to retain the right to seek damages, even if the assessment was not carried out in accordance with the Act.

In conclusion, the court ruled that the statutory provisions governing the assessment of a worker's degree of impairment and the process for electing to retain the right to seek damages do not abrogate important common law rights. The court further held that the worker's election to retain the right to seek damages remains valid, regardless of any non-compliance with the assessment process. The court's decision underscores the importance of preserving common law rights in the context of statutory schemes and highlights the need for compliance with statutory provisions to ensure the validity of any election made by the worker.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Further, statutory provisions are not to be construed as abrogating important common law rights, privileges and immunities in the absence of clear words or a necessary implication to that effect.[11] The rights of a worker to claim for personal injury caused by negligence are important common law rights.[12][11] Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543 [11], [43], [111], [132].[12] Dossett v TKJ Nominees Pty Ltd [2003] HCA 69; (2003) 218 CLR 1 [21], [85]; Re Monger; Ex Parte Cross [2004] WASCA 176 [73], [74], [163]. In addition, while as a general rule it is impermissible to call in aid in the construction of an Act the delegated legislation made under that Act, it is useful here to refer to the Workers' Compensation Regulations for the purposes of ascertaining what the legislative scheme is.[13] [13] DC Peers and RS Geddes, Statutory Interpretation in Australia (8th ed, 2014) [3.41]. In this case, it is important to explain the statutory and regulatory regime applicable to these subject matters:(a)the constraint on the court's jurisdiction to award damages to an injured worker; (b)the process for assessing a worker's degree of impairment;(c)the process by which the Director records an assessment;(d)how a worker may elect to retain the right to seek damages and the process by which the Director registers an election; and(f)the consequences which flow from the Director recording an assessment, and registering an election. The Director is the person designated by the Chief Executive Officer of WorkCover WA as the Director, Conciliation.[14] The person so designated must be an officer of WorkCover WA. The designated Director has the functions conferred on the Director by the Workers' Compensation Act.[15][14] Section 5(1) of the Workers' Compensation Act (definition of Director) and s 182A(1).[15] Section 182A(2). I will address separately the interpretation of s 93N. It is of particular importance in this case. It authorises the obtaining of a special evaluation. Fero Reinforcing says the special evaluation relied on by Mr Trac was not obtained in accordance with s 93N. As a consequence, Fero Reinforcing says Mr Trac's election is of no effect, it having been made in reliance on a non-compliant special evaluation. Subdivision 3 of div 2, pt IV of the Workers' Compensation Act applies to Mr Trac's claims, the pleaded causes of action arising on or after 14 November 2005.[16][16] Section 93I(1); s 79 of the Workers' Compensation Reform Act2004 came into operation on 14 November 2005. The constraints on the award of damages to a worker for a workplace injury are provided for by a combination of s 93C, s 93K and s 93L, all of which appear within div 2. Section 93C provides that a court is not to award damages to a person contrary to div 2. Section 93K(4) provides that damages in respect of an injury can only be awarded if all of the identified criteria at s 93K(4)(a) ‑ s 93K(4)(d) are met. Subparagraph (a) specifies that the worker elects, in the manner provided for in the Workers' Compensation Regulations, to retain the right to seek damages. Subparagraph (b) specifies that the Director has registered the election in accordance with the Workers' Compensation Regulations. Subparagraph (c) specifies that the relevant court proceedings are commenced after the Director gives the worker written notice that the Director has registered the election. Subparagraph (d) relates to the outcome of the court proceedings, specifying that the court is to be satisfied the worker's degree of permanent whole of person impairment is at least 15%.