Wattyl Australia Pty Ltd v McArthur - [2008] NSWCA 326

No judgment structure available for this case.

Reported Decision: 74 NSWLR 229

New South Wales

Court of Appeal

CITATION: Wattyl Australia Pty Limited v McArthur [2008] NSWCA 326

HEARING DATE(S): 16/04/08 [then written submissions]

JUDGMENT DATE:
28 November 2008

JUDGMENT OF: Beazley JA at 1; Young CJ in Eq at 102; Grove J at 186

DECISION: 1. Leave to appeal granted.
2. Notice of appeal to be filed within seven days.
3. Appeal allowed.
4. Orders of Balla DCJ set aside.
5. In lieu, order that the opponent's claim for work injury damages be dismissed.
6. Order that the opponent pay the claimant's costs of the appeal.
7. Order that the opponent receive a certificate under the Suitors' Fund Act 1951.

CATCHWORDS: WORKERS COMPENSATION- Opponent worker claims work injury damages- Opponent did not make a claim for lump sum compensation before or at the same time as required by s 280A WIM Act 1998- Whether primary judge in error in finding that the opponent did not have to comply with s 280A and Ch 7 procedural provisions because he had no entitlement to lump sum compensation- Whether primary judge in error in finding that in any event, the opponent had abandoned any such lump sum claim- Held that in the light of Sch 6 Pt 18C Workers Compensation Act, Ch 7 procedural provisions apply equally to existing claims prior to 2001 amendments- Legislative scheme is focussed on the making of a claim, rather than on one's entitlement or likelihood to succeed- Section 280A acts as gateway to ensure work injury claims cannot succeed unless the plaintiff has suffered permanent impairment in excess of 15%- Statutory obligation to make a claim cannot be avoided by abandonment.

LEGISLATION CITED: Interpretation Act 1987, s 35
Statute of Frauds 1677 (Eng) 24 Car II c 3
Workers Compensation Act 1987, ss 2A, 66, 67, 149, 151, 151A, 151B, 151C, 151D, 151DA, 151E, 151F, 151G, 151H, 151L, Sch 6 Pt 18C cl 8
Workers Compensation Legislation Amendment Act 2001
Workplace Injury Management and Workers Compensation Act 1998, ss 3, 4, 7, 41, 43, 44, 45, 47, 250, 251, 259, 260, 261, 262, 263, 280A, 281, 282, 283, 285, 286, 312, 313, 314, 315, 318A, 318D, 320, 321, 322, 323, 325, 326

CATEGORY: Principal judgment

CASES CITED: Admiralty Commissioners v Valverda; Brown v The Queen; Bonner v Wilkinson (1822) 5 B & Ald 682; (1822) 106 ER 1340
Allianz Australia Insurance Limited v GSF Australia Pty Limited [2003] NSWCA 174; (2003) 57 NSWLR 321
Attileh v State Rail Authority [2005] NSWCA 64; (2005) 62 NSWLR 439
Berowra Holdings Pty Limited v Gordon [2006] HCA 32; (2006) 225 CLR 364
CSR Limited v Eddy [2005] HCA 64; (2005) 80 ALJR 59
Gordon v Berowra Holdings Pty Ltd [2005] NSWCA 27; (2005) 62 NSWLR 427
J C Equipment Hire Pty Ltd v Registrar of Workers Compensation Commission of NSW [2008] NSWCA 43
Kimberly-Clark Australia Pty Ltd v Thompson (2006) 67 NSWLR 187
Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7; (1938) 59 CLR 369
Project Blue Sky v ABA [1998] HCA 28; (1998) 194 CLR 355
Rumsey v The North Eastern Railway Co (1863) 14 CBNS 641; (1863) 143 ER 596
The Commonwealth v Mewett [1997] HCA 29; (1997) 191 CLR 471
The Commonwealth v Verwayen [1990] HCA 39; (1990) 170 CLR 394

PARTIES: Wattyl Australia Pty Limited (Appellant/Claimant)
John Gary McArthur (First Respondent/First Opponent)
SGIO Insurance Limited (Second Respondent/Second Opponent)

FILE NUMBER(S): CA 40404/07

COUNSEL: M Joseph SC and S Kettle (Appellant/Claimant)
T McKenzie (First Respondent/First Opponent)
Submitting appearance (Second Respondent/Second Opponent)

SOLICITORS: Hunt & Hunt (Appellant/Claimant)
Graham Jones, Lawyers (First Respondent/First Opponent)
Sparke Helmore Lawyers (Second Respondent/Second Opponent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 2667/03

LOWER COURT JUDICIAL OFFICER: Balla DCJ

LOWER COURT DATE OF DECISION: 1 June 2007

LOWER COURT MEDIUM NEUTRAL CITATION: John Gary McArthur v Wattyl Australia Pty Limited and SGIO Insurance Limited

CA 40404/07
DC 2667/03

BEAZLEY JA
YOUNG CJ in EQ
GROVE J
Friday 28 November 2008

WATTYL AUSTRALIA PTY LIMITED v McARTHUR

Judgment

1 BEAZLEY JA: I have the advantage of reading in draft the judgments of Young CJ in Eq and Grove J. I rely on the judgment of Young CJ in Eq for the discussion of the facts, the trial judge’s reasons and the arguments of the parties. Consistent with Young CJ in Eq’s reference to the parties, I will refer to Wattyl Australia, the claimant seeking leave to appeal, as the claimant and to Mr McArthur as the opponent.

2 The issue before the Court is whether the opponent has regularly brought proceedings for damages for a workplace injury. That issue raises two questions. First, whether, when bringing proceedings for a workplace injury, the opponent must before, or at the same time, make a claim for lump sum compensation in respect of the injury. This question raises the proper construction of s 280A of the Workplace Injury Management and Workers Compensation Act 1998 (the WIM Act), the terms of which are set out below. That question in turn raises a second question, namely, whether an applicant for damages may abandon or waive the entitlement to lump sum compensation.

3 The issue has arisen because the opponent has not complied with s 280A. He also seeks to avoid the pre-trial procedures specified in Ch 7, Pt 6: “Court proceedings for work injury damages”. The claimant contended that the provisions of the WIM Act are mandatory. It relied upon the following provisions as demonstrating that is so and argues that a claim for lump sum compensation cannot, therefore, be abandoned or waived: ss 262; 263; 313; 315; and 318A. Leaving aside ss 262 and 263, the provisions of Ch 7 require the assessment of the degree of permanent impairment if there is a dispute as to the extent thereof: s 313; the serving of a pre-filing statement: s 315; and the engagement in mediation processes: s 318A. I will refer to other provisions as I consider necessary to understand the operation of the legislation.

4 The opponent is out of time to comply with the various provisions of the WIM Act. The Court is not concerned with why that is so, although it might be remarked that the opponent has been confronted with the now complex legislative regimes which govern workplace injuries and motor vehicle accidents. It is sufficient to note that the opponent originally commenced proceedings under the Motor Accidents Compensation Act 1999, but following the decisions of the High Court in CSR Limited v Eddy [2005] HCA 64; (2005) 80 ALJR 59 and Allianz Australia Insurance Limited v GSF Australia Pty Limited [2003] NSWCA 174; (2003) 57 NSWLR 321, the opponent’s legal advisers advised the opponent to commence these proceedings.

The WIM Act

5 The objectives of the legislative scheme created by the WCA and the WIM Act are set out in s 3 of the WIM Act. Relevant for present purposes are subs (c) and (f), which provide:

“(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,

…

6 “Work injury damages” is defined in Ch 7, Pt 1, s 250 to mean:

“… damages recoverable from a worker’s employer in respect of:

(a) an injury to the worker caused by the negligence or other tort of the employer, or

(b) the death of the worker resulting from or caused by an injury caused by the negligence or other tort of the employer,

7 “Compensation” is defined in s 4 to mean:

“… compensation under the Workers Compensation Acts, and includes any monetary benefit under those Acts.”

8 “Lump sum compensation” is defined under s 4 to mean:

“… compensation under Division 4 (Compensation for non-economic loss) of Part 3 of the 1987 Act.”

9 Sections 66 and 67 of the WCA fall within Pt 3, Div 4 of the WCA and provide for the payment of lump sum compensation benefits for permanent impairment. Such benefits are payable, provided the relevant thresholds are satisfied, in a claim for compensation made under the WCA. I will refer to such claims either as a claim for compensation, or for lump sum compensation, or as a “workers compensation claim”, again as the context renders appropriate.

10 Chapter 7 Pt 2 Div 2 of the WIM Act provides for making a claim for compensation or damages. Section 259(1) provides that Div 2 applies to the making of a claim after the commencement of the section, even if the injury was sustained before its commencement. However, subs (2) provides that Div 2 does not apply if court proceedings were commenced before the commencement of the section. In Attileh v State Rail Authority [2005] NSWCA 64; (2005) 62 NSWLR 439 Mason P (Santow and Tobias JJA agreeing) held that the effect of s 259 was that Ch 7 Pt 2 Div 2 applied to any type of claim made after January 2002 (the commencement date of s 259). The Court further held that construction was reinforced by the terms of Sch 6 Pt 18C of the WCA.

11 “Claim” is defined in s 4 of the WIM Act to mean a claim for compensation or work injury damages that a person has made, or is entitled to make. Section 260 of the WIM Act provides that a claim (either for compensation or for work injury damages) must be made in accordance with the applicable requirements of the WorkCover Guidelines.

12 Section 262 of the WIM Act provides:

“ 262 Time within which claim for work injury damages must be made

13 Section 263 of the WIM Act provides that 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. There is a potential costs penalty if such claims are not made at the same time.

14 The particular section in contention in this case is s 280A of the WIM Act. That section provides:

“ 280A Claim for lump sum compensation a pre-condition to damages claim

15 Section 280A is contained in Ch 7, Pt 3, Div 4: “Claim for lump sum compensation and work injury damages”. It is apparent from the provisions following s 280A that Div 4 contains a set of mechanisms directed to fulfilling the objectives of the legislative scheme of delivering entitlements under the WCA efficiently and effectively (see s 3 at [5] above).

16 Section 281 provides that a person on whom a claim for lump sum compensation or work injury damages is made must, within the time specified, determine the claim by accepting liability and make a reasonable offer of settlement, or dispute the claim: subs (1). The relevant “time” is specified in subs (2) as follows:

“(a) within 1 month after the degree of permanent impairment first becomes fully ascertainable, as agreed by the parties or as determined by an approved medical specialist , or

17 Section 282 specifies the “relevant particulars” of the claim that must be provided for the purposes of s 281.

18 Significantly, s 283 provides that a person who fails to determine a claim as and when required by Pt 3 is guilty of an offence, unless the person has a reasonable excuse for the failure.

19 Chapter 7, Pt 4 of the WIM Act provides for the determination of disputes in connection with a claim for compensation. Such disputes, if not resolved, are determined by the Workers Compensation Commission of New South Wales. Part 5 deals with the expedited assessment of certain disputes (but not in respect of a claim for work injury damages).

20 Chapter 7, Pt 6 of the WIM Act deals with “Court proceedings for work injury damages”. Its provisions are, relevantly:

“ 312 Forum for court proceedings

Proceedings in respect of a claim for work injury damages may be taken in any court of competent jurisdiction, subject to this Part.

Division 2 Threshold for award of damages

313 Threshold dispute prevents service of pre-filing statement and commencement of court proceedings

If there is a dispute

the claimant cannot commence court proceedings

and cannot serve a pre-filing statement

unless the degree of permanent

21 Section 314(1) of the WIM Act provides that there is such a dispute if the person on whom the claim is made has not accepted that the degree of permanent impairment is at least 15 per cent, or there is a dispute as to whether the degree of permanent impairment is fully ascertainable.

22 Section 315 of the WIM Act provides:

“ 315 Requirement for pre-filing statement before commencing court proceedings

(1) Before a claimant can commence court proceedings for the recovery of work injury damages, the claimant must serve on the defendant a pre-filing statement setting out such particulars of the claim and the evidence that the claimant will rely on to establish or in support of the claim as the Rules may require.

(a) the person on whom the claim is made wholly disputes liability for the claim, or

(b) the person on whom the claim is made has made an offer of settlement to the claimant pursuant to the determination of the claim as and when required by section 281 and 1 month has elapsed since the offer was made, or

(c) the person on whom the claim is made has failed to determine the claim as and when required by section 281.”

23 Chapter 7, Pt 6, Div 4 of the WIM Act relates to mediation and prescribes that mediation is a compulsory component of the pre-filing procedures under the Act. It is sufficient for present purposes to refer to subs 318A(1) and (3), which provide:

“ 318A Mediation of claim before commencement of court proceedings

(1) A claimant must refer a claim for work injury damages for mediation under this Division before the claimant can commence court proceedings for recovery of those work injury damages. The claim cannot be referred for mediation until at least 28 days after the pre-filing statement has been served on the defendant under Division 3.

…

24 Chapter 7, Pt 7 of the WIM Act deals with medical assessment. A flashback to the earlier provisions of Ch 7 discussed above connects Pt 7 to Pt 6 and in particular, to s 313. Part 7 makes provision for the appointment of approved medical specialists: s 320; and for the referral of a medical dispute for assessment: s 321. Section 321 is not relevant to the issue on the appeal. Section 322(1) is, however, relevant because of the operation of s 313. Section 322(1) provides:

“ 322 Assessment of impairment

25 Section 325(1) of the WIM Act provides that an approved medical specialist to whom a medical dispute is referred is to give a medical assessment certificate as to the matters referred for assessment.

26 Section 326 of the WIM Act provides:

“ 326 Status of medical assessments

(a) the degree of permanent impairment of the worker as a result of an injury,

(b) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality,

(c) the nature and extent of loss of hearing suffered by a worker,

(e) whether the degree of permanent impairment is fully ascertainable.

27 Thus far, I have only dealt with the provisions of the WIM Act. Those provisions are procedural in nature. It will be noted that those procedural provisions are cast in terms that specify what must be done before or as part of the bringing of a claim under the legislative scheme, or otherwise require compliance. By way of reiteration, s 262 states that court proceedings cannot be commenced until a claim for damages is made; s 280A states a claim for work injury damages cannot be made, unless a claim for lump sum compensation is made; s 281 provides that a person on whom a claim is made must determine the claim; s 283 provides for a penalty for failure to determine a claim as required by Pt 3; and s 313 provides a pre-filing statement cannot be served and court proceedings cannot be commenced unless the degree of permanent impairment has been assessed by an approved medical specialist under Pt 7. I will return to the importance of this statutory language after considering the claims which may be made for a work based injury.

The WCA

28 The claims with which the WIM Act deals are brought under Pts 2, 3 and 5 the WCA. Claims for payment of weekly compensation under Pt 2 are not presently relevant. Claims for lump sum compensation are governed by ss 66 and 67, which as I have already said, fall within Pt 3, Div 4 of the WCA, as follows:

“ 66 Entitlement to compensation for permanent impairment

29 Section 66(2) of the WCA specifies the manner in which permanent impairment is to be calculated.

30 Section 67 of the WCA provides for compensation for pain and suffering where a worker’s injury results in a degree of permanent impairment of 10 per cent of more.

31 The opponent’s claim in this case is for common law damages. Part 5 of the WCA provides for a scheme of common law damages for injury, where the employer is liable to a worker in negligence or some other tort. Part 5 comprises ss 149-151AC. The following provisions are relevant to the question which the Court is called upon to determine in this case.

32 Section 149 of the WCA is a definition provision. Relevantly, it defines damages to mean:

“ 149 Definitions

(1) In this Part:

damages includes:

(b) without limiting paragraph (a), any amount paid under a compromise or settlement of a claim for damages (whether or not legal proceedings have been instituted),

but does not include:

33 The entitlements to lump sum compensation for permanent impairment and pain and suffering provided for by ss 66 and 67 are “compensation under [the WCA]” and are thus excluded from the meaning of “damages” for the purpose of Pt 5.

34 Part 5 Div 2 of the WCA makes provision for common law and other remedies. Section 151 provides:

“ 151 Common law and other liability preserved

35 Section 151A of the WCA provides for the effect of recovery of damages on compensation as follows:

“ 151A Effect of recovery of damages on compensation

(a) the person ceases to be entitled to any further compensation under this Act in respect of the injury concerned (including compensation claimed but not yet paid), and

(b) the amount of any weekly payments of compensation already paid in respect of the injury concerned is to be deducted from the damages (awarded or otherwise paid as a lump sum) and is to be paid to the person who paid the compensation, and

(c) the person ceases to be entitled to participate in any injury management program provided for under this Act or the 1998 Act.”

36 Section 151C(1) of the WCA provides that a person may not commence court proceedings for damages until six months has elapsed since notice of the injury was given to the employer. Section 151C(3) provides:

“(3) This section does not limit or otherwise affect the operation of Part 6 of Chapter 7 of the 1998 Act.”

37 It will be recalled that Pt 6 of the WIM Act includes ss 313 (assessment of the degree of permanent impairment), 315 (the serving of pre-filing statement) and 318A (the mediation provisions), upon which the claimant relied in support of its argument that the provisions of s 280A must be complied with if a claim for work injury damages is made.

38 Sections 151D and 151DA of the WCA relate to the time in which proceedings may be brought. Under s 151D the time limit is three years. However, time does not run for the purposes of s 151D, as follows:

“ 151DA Time not to run for commencement of proceedings in certain cases

(a1) while the determination of the claim concerned is delayed as permitted by section 281 of the 1998 Act, but not including delay beyond 2 months after the claimant has provided all relevant particulars about the claim as required by section 281 (2) (b) of that Act, or

while a medical dispute as to whether the degree of permanent impairment of the injured worker is at least 15%, or whether the degree of permanent impairment of the injured worker is fully ascertainable

(a2) during the period of 1 month after an offer of settlement is made to the claimant pursuant to the determination of the claim as and when required by the 1998 Act, or

(a3) while an assessment under Part 7 of Chapter 7 of the 1998 Act in respect of a medical dispute referred to in paragraph (a) is the subject of a pending appeal under section 327 of the 1998 Act, or

(b) while a pre-filing statement served in accordance with section 315 of the 1998 Act in respect of the claim concerned remains current.”

39 Part 5 Div 3 of the WCA is entitled “Modified common law damages”. It comprises ss 151E-151T. Section 151E is the general application provision and provides that the Division applies to an award of damages in respect of an injury to a worker caused by the negligence or other tort of the worker’s employer: subs (1). The division does not apply to an award of damages to which Pt 6 of the Motor Accidents Act 1988 or Ch 5 of the Motor Accidents Compensation Act 1999 applies.

40 Section 151F of the WCA provides that a court may not award damages to a person contrary to the Division.

41 Section 151G of the WCA has particular relevance to the opponent’s claim. It provides that the only damages which may be awarded in a claim brought against an employer for an injury caused by the negligence or other tort of the employer, are damages for past economic loss due to loss of earnings and damages for future economic loss due to the deprivation or impairment of earning capacity. In short, this means an injured employee who makes a common law claim for a work-caused injury is not entitled, in that claim, to damages for non-economic loss.

42 This was a significant change to the scheme of modified common law damages which had operated prior to amendments made to the WCA in 2001. Previously, capped damages for non-economic loss were recoverable provided that an initial threshold quantum of damages was achieved. (It is not presently relevant to consider the earlier provisions of the WCA, which first abolished common law damages for workplace claims and then reinstated such claims in respect of injuries occurring after a specific date.)

43 Section 151H of the WCA places a restriction on the award of damages for economic loss that may be recovered, by providing that no damages may be awarded unless the injury results in a degree of permanent impairment of the injured worker that is at least 15 per cent. The section provides, relevantly:

“ 151H No damages unless permanent impairment of at least 15%

44 Subsection (2) provides for the matters which may be taken into account in assessing the 15 per cent threshold. In particular, there is a separation of physical injury and psychological injury. It is convenient to set out the relevant approach required by the section:

(a) impairment resulting from physical injury is to be assessed separately from impairment resulting from psychological injury, and

(b) in assessing impairment resulting from psychological injury, no regard is to be had to impairment that results from a secondary psychological injury, and

(c) the 15% threshold is not met unless the degree of permanent impairment resulting from physical injury is at least 15% or the degree of permanent impairment resulting from psychological injury is at least 15%.”

45 The note to subs (2) provides that the subsection does not prevent an award of damages in respect of both psychological and physical injuries together, once the 15 per cent threshold has been met for one or the other. The subsection provides that in assessing the degree of permanent impairment resulting from physical injury, no regard is to be had to any impairment or symptoms resulting from a psychological injury. Importantly, subs (4) provides that the degree of permanent impairment resulting from an injury is to be assessed as provided by s 151H itself and Pt 7 (Medical assessment) of Ch 7 of the WIM Act. Section 322 (Assessment of impairment) falls within Pt 7, Ch 7. Reference at this point should also be made back to ss 313 and 314. Section 313 provides that such proceedings cannot be commenced if there is a dispute as to the degree of permanent impairment. Section 314 specifies that there will be a threshold dispute as to the degree of permanent impairment if, inter alia, the person on whom the claim is made has not accepted that there is at least a 15 per cent permanent impairment: see [20] and [21] above.

46 Notwithstanding that since the 2001 amendments, damages for non-economic loss may not be claimed in a common law action against an employer, then, subject to the operation of s 151A, compensation for permanent impairment may still be claimed under the provisions of ss 66 and 67 of the WCA in compensation proceedings. This is in marked contrast to the position which pertained prior to the 2001 amendments. Under the previous s 151A, a worker was required to elect between bringing a claim for common law damages and receiving compensation, including compensation for permanent impairment.

47 The sections of the WCA discussed thus far show a clear relationship between the entitlements provided by the WCA and the procedural provisions of the WIM Act. This is in accordance with the scheme of the legislation as reflected in s 2A of the WCA, which provides:

“ 2A Relationship to Workplace Injury Management and Workers Compensation Act 1998

…

(2) This Act is to be construed with, and as if it formed part of, the 1998 Act. Accordingly, a reference in this Act to this Act includes a reference to the 1998 Act.

Interrelationship of the WIM Act and the WCA

48 The interaction between the common law provisions of the WCA and the WIM Act are also to be found in other sections of the WCA. For example, s 151L of the WCA requires the court, in assessing damages, to consider the steps the worker took or could reasonably have taken to mitigate damages. In considering the question of mitigation, the court must consider, inter alia, whether the injured worker has duly complied with the obligations under Ch 3 of the WIM Act relating to workplace injury management: s 151L(2)(c).

49 The objects of Ch 3 of the WIM Act are to establish a system which seeks to achieve optimum results in terms of the timely, safe and durable return to work for workers following workplace injuries: s 41. The provisions of Ch 3 include a requirement that an insurer establish and maintain an injury management programme for an injured worker: s 43; provision for the early notification of a workplace injury: s 44; the establishment of an injury management plan for an individual worker who has sustained a significant injury: s 45; and the requirement that an injured worker must participate and cooperate in the establishment of an injury management plan that is required to be established for the worker: s 47.

Must s 280A be complied with in bringing a claim for work injury damages?

50 On a plain reading of the provisions of the WIM Act discussed above, and the interactive provisions of both the WIM Act and the WCA, it might be thought that there was no question that the opponent’s claim needed to comply with the provisions of the WIM Act.

51 However, the terms of s 280A of the WIM Act might seem to be unusual, as their effect appears to require a person to make a claim for lump sum compensation if that person intends to make a claim for work injury or common law damages. I say it is unusual because a person may, for a variety of reasons, decide to forego making a particular claim for a wrong (not only for compensation or damages under the WCA). Reasons why a person may so decide could be the costs of marshalling the evidence to support a particular claim; or the person may be aware of credibility issues that might arise if a particular claim was pursued. Neither of those matters arise here. In this case, the opponent commenced proceedings in the District Court for damages without bringing a claim for lump sum compensation as s 280A specifies. It is not entirely apparent why he did so, although it was presumably part of the difficulties with which he was confronted after the High Court delivered its decision in CSR v Eddy and Allianz v GSF: see [4] above. Nonetheless, he is prepared to forego any claim for lump sum compensation he may have had, so that he can, on his case, bring his damages claim. He said that if he foregoes his lump sum compensation claim, s 280A has no operation.

52 However, when the interrelationship between the WIM Act and the common law provisions of Pt 5 of the WCA are understood, it is apparent that the purpose of the requirement in s 280A is to provide the gateway into the making of a common law claim. The common law claim is not maintainable unless the worker has satisfied the 15 per cent threshold for permanent impairment: s 151H of the WCA. That is required to be assessed in accordance with the provisions of the WIM Act: Pt 7 (Medical assessment) of Ch 7. For my part, I would have thought that the intention of Parliament was that the assessment of the degree of permanent impairment was to be made at the same time for each of a claim for lump sum compensation and for work injury damages.

53 There are at least two arguments and authority against this approach. The first of these arguments relates to s 263 of the WIM Act. Under s 263, claims for lump sum compensation, that is, claims for various entitlements under s 66 and claims for pain and suffering under s 67 of the WCA, must, as far as practicable, be made at the same time. Section 263 provides that there may be costs consequences for a legal practitioner or agent if claims are not made at the same time. However, there is no prohibition on bringing claims at different times.

54 This section might be thought to provide some indication that, as there is no prohibition on bringing claims for lump sum compensation at different times, a person ought not be precluded from bringing a claim for damages for a work place injury, but not bring a claim for lump sum compensation. Thus, although the purpose of a provision such as s 263 is directed to the efficiency of the compensation system, including the minimisation of costs and the multiplicity of proceedings, in discouraging the multiplicity of claims, it also recognises that multiple claims, at least for lump sum compensation, are maintainable even if brought at different times.

55 However, the operation of one section cannot overcome the clear words of another section, provided that those clear words give effect to the particular intention. As was stated in Project Blue Sky v ABA [1998] HCA 28; 194 CLR 355, at [78]:

“… the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision.”

56 Their Honours pointed out in the same passage that:

“The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.” (Citation omitted)

57 The other argument relates to the operation of a medical certificate under s 326 of the WIM Act. A certificate under s 326 is conclusive in relation to the proceedings for which it was obtained and not otherwise. The claimant submitted that the medical assessment for s 66 compensation and work injury damages is the same. However, that argument was rejected in JC Equipment Hire Pty Limited v The Registrar of the Workers Compensation Commission of NSW [2008] NSWCA 43. In that case, Tobias JA (Campbell and Bell JJA agreeing), held at [39]:

“… it is to be noted that the effect of s 326(1) is that a medical assessment certificate issued pursuant to a medical assessment under Pt 7 of Ch 7 is only conclusively presumed to be correct with respect to the proceedings for the purpose of which the certificate has been obtained, namely, for the purpose of a lump sum compensation claim on the one hand or a work injury damages claim on the other. As such, the acceptance by the person on whom a claim for lump sum compensation under s 66 is made that the degree of permanent impairment is a particular percentage figure should not, unless the text of the statute so requires, be conclusively binding upon that person in respect of a claim for work injury damages.”

58 Tobias JA added at [40]:

“This is particularly so given that s 281(2B) requires the person on whom that claim is made to notify the claimant as to whether or not that person accepts that the degree of permanent impairment is sufficient for an award of work injury damages.”

59 I have difficulty with this construction of s 326 of the WIM Act. In my opinion, on the proper construction of s 326, the presumption is that the certificate relates to the matter in the certificate, not the proceedings in which the certificate is required. The terms of ss 280A and 281 support this construction. There may also be questions of issue estoppel arising from the content of the certificate. Nonetheless, the decision is a recent unanimous decision of this Court and should be followed. There was no application that it be reargued.

60 There is nothing in the purpose of the statute that indicates that s 280A ought not be read according to its terms. Indeed, the contrary is the case. The construction given to s 326 in the JC Equipment Hire does not alter my view.

61 That brings me back to the WIM Act and s 280A, and its relationship with Pt 5 of the WCA. Whilst a person is not entitled to lump sum compensation or any other form of non-economic loss under Pt 5 in a claim for common law damages, the entitlement to economic loss is tied to the degree of permanent impairment that the person sustains. That needs to be assessed. The assessment procedures are specified in the WIM Act as discussed above (that is so, even on the premise that a certificate under s 325 is, by s 326, conclusive only in respect of the proceedings for which it was obtained). The provisions of s 151H(2) of the WCA do not detract from the need to engage the assessment procedures under the WIM Act.

Can a claimant for workers compensation damages waive or abandon a claim for lump sum compensation?

62 However, that does not resolve the issue before the Court, because the question remains whether an applicant for workers compensation can abandon or waive an entitlement to lump sum compensation.

63 The question of waiver in the context of the WCA was referred to in Berowra Holdings Pty Limited v Gordon [2006] HCA 32; (2006) 225 CLR 364. The procedural issue which arose in that case, as summarised in the headnote, was this. The worker suffered an injury on 2 October 2001 in the course of his employment and, on 23 November 2001, commenced proceedings in the District Court, claiming common law damages in respect of that injury. Notice of injury was given to the employer on 12 October 2001. The employer admitted liability for workers compensation payments.

64 Pursuant to s 151C(1), court proceedings for work injury damages could not be commenced until the expiry of six months after the notice was given, that is, until 12 April 2002. The employer’s solicitors nonetheless took numerous steps in the proceedings without reference to s 151C, until the day before the case was fixed for hearing, on 21 May 2003.

65 On 6 May 2003, the employer made an offer of compromise under Pt 19A of the District Court Rules. That offer was open for acceptance for 28 days. The Rules provided the offer could not be withdrawn during that period, unless the court ordered. On 20 May 2003, the day before the hearing, the employer notified the worker that it would apply for leave to withdraw the offer and seek an order for summary dismissal on the ground the proceedings were a nullity.

66 The worker accepted the offer the next day, 21 May 2003. Subsequently, the employer was granted leave to file an amended defence so as to rely on s 151C(1) and leave to withdraw the offer of compromise. The proceedings were then dismissed as a nullity. An appeal to the Court of Appeal was allowed. The appeal to the High Court was dismissed.

67 In the Court of Appeal decision: Gordon v Berowra Holdings Pty Limited [2005] NSWCA 27; (2005) 62 NSWLR 427, it was held that notwithstanding the failure to comply with s 151C(1), the commencement of proceedings did not render the proceedings a jurisdictional nullity. Mason P, with whom Sheller and Beazley JJA agreed, also considered the question of waiver of statutory rights, stating at [46], that:

Admiralty Commissioners v Valverda (Owners)

Brown v The Queen

68 His Honour considered that although a provision such as s 151C(1) served the public interest in encouraging dispute resolution without litigation, in an adversarial system of litigation, the parties were nonetheless free to make their own forensic decisions. His Honour considered that s 151C(2) confirmed the section was of that nature and was thus non-jurisdictional.

69 In the High Court, it was noted in the plurality judgment (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ) that the right of a worker to sue an employer for damages remained a right sourced at common law, albeit that its enjoyment was regulated by the provisions of Pt 5 of the WCA. Their Honours proceeded to construe the time specification in s 151C in that context. They noted that s 151C imposed a form of restriction or bar upon the commencement of court proceedings. The issue before the Court, however, was the effect of non-compliance with that statutory bar.

70 The High Court approached the question of the construction of the statute by reference to three principles: the first was the principle of interpretation relating to statutory bars; the second was by having regard to the statutory purpose of the provision; and the third was in relation to jurisdiction.

71 So far as the first was concerned, their Honours adopted, at [20], the well-known interpretative approach to construing statutory bars explained in The Commonwealth v Mewett [1997] HCA 29; (1997) 191 CLR 471 at 534-535, that:

"[A] statutory bar, at least in the case of a statute of limitations in the traditional form, does not go to the jurisdiction of the court to entertain the claim but to the remedy available and hence to the defences which may be pleaded. The cause of action has not been extinguished. Absent an appropriate plea, the matter of the statutory bar does not arise for the consideration of the court. This is so at least where the limitation period is not annexed by statute to a right which it creates so as to be of the essence of that right." (Citations omitted)

72 Their Honours further noted at [20], that the Court in Mewett was dealing with a case where the statute barred the remedy for the plaintiff’s cause of action, without extinguishing the underlying right. It was noted there was a long pedigree of such statutes, including s 4 of the Statute of Frauds 1677 (Eng) 24 Car II c 3, which provided “no Action shall be brought ... unless ...”. Similarly, the limitation provision under consideration in The Commonwealth v Verwayen [1990] HCA 39; (1990) 170 CLR 394 at 404-405, where the relevant limitation provision was in terms that no action shall be brought after the expiration of three years. The position is different where the relevant limitation statue extinguishes the right sought to be advanced.

73 Their Honours, in Berowra Holdings, observed that the New South Wales Legislature must have been taken to have been aware of this distinction when enacting s 151C. Their Honours noted, at [23], that a clear legislative intent needed to be demonstrated before a statutory provision could be properly construed as taking away the common law rights of a plaintiff. The Court considered, therefore, if s 151C was properly to be regarded as analogous to the statutory bars that have been discussed, that is, as barring the right, then it was unlikely that proceedings commenced in contravention of the limitation in s 151C were properly regarded as a nullity.

74 Next, their Honours looked at statutory purpose. As their Honours noted, at [24], all statutes in some way give effect to public policy: see The Commonwealth v Verwayen per Mason J at 405. Whilst the public might be intended to benefit from general compliance with s 151C, it nonetheless was of significant benefit to the defendant in being freed from litigation for a stipulated period of time. Their Honours said, at [25], that such public benefit as there was in a provision such as s 151C was “mediated through a benefit conferred on individual litigants”. Their Honours held that even if there was a wider policy than just stated, that did not warrant the conclusion that non-compliance inevitably resulted in the invalidity of proceedings which were wrongfully commenced. Rather, the Court stated, at [26]:

“An essential ingredient in postulating that settlement negotiations or non-litigated solutions should take place during the six month period must be that there is something to compromise. This rather tells against a construction of s 151C which regards it as denying or severely impairing the plaintiff's rights. It may instead suggest that the statute postpones the remedy, as counsel for the worker contended. In this sense, the policy of the statute weakens rather than strengthens the construction favoured by the employer.”

75 Their Honours had earlier, at [13], discussed the role of procedural law. That discussion is relevant to the questions that arise in this case. It is useful, therefore, to reproduce their comments in full:

‘[13] … The institution of an action or other proceeding is the exercise by the litigant of the freedom to invoke the jurisdiction of the judicial arm of government to determine a dispute. That step engages the procedural law appurtenant to the relevant court, which in modern times is found primarily in the Rules.

[14] Professor Jolowicz describes procedural law as creating choices or a sequence of choices in the sense that each procedural step taken by a litigant requires the other party or the court to take some action, so affecting the path which the proceedings take towards ultimate disposition. This is the case even where a procedural rule is expressed in mandatory form; if the party to whom it is addressed chooses to disregard it, the normal outcome is that a choice accrues to the other party either to do nothing or to seek an appropriate order from the court.

[15] In the adversarial system of justice, choice rests primarily with the parties and it is generally the case that the court's power of decision or order is exercised upon the application of a party. Generally there is in law no restriction upon a person's right to start an action and to carry it to the point at which a choice is cast upon the defendant to make some response in order to avoid judgment in default. Once the procedural law has been engaged, all parties to the litigation are subject to it.

76 Their Honours concluded in this part of their analysis that once the role of procedural law was understood, there was no substance in a submission that the section would be undermined if a worker was permitted to commence proceedings in contravention of the statutory bar. Their Honours considered, at [27], that such a submission:

“… requires acceptance of the proposition that the New South Wales Parliament intended that potential invalidity should attend all steps taken in reliance upon proceedings wrongfully commenced, regardless of the procedural history and context of the litigation. To attribute such potentially indiscriminate consequences to non-compliance would be to confer upon the statute a character which its words do not readily bear and which is quite removed from facilitating non-litigated settlements.”

77 Their Honours next looked at jurisdiction. In this regard, it is sufficient to refer to their Honours’ reference to Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7; (1938) 59 CLR 369, where Dixon J said, at 391:

"[I]f the legislature does make the jurisdiction of a court contingent upon the actual existence of a state of facts, as distinguished from the court's opinion or determination that the facts do exist, then the validity of the proceedings and orders must always remain an outstanding question until some other court or tribunal, possessing power to determine that question, decides that the requisite state of facts in truth existed and the proceedings of the court were valid. Conceding the abstract possibility of the legislature adopting such a course, nevertheless it produces so inconvenient a result that no enactment dealing with proceedings in any of the ordinary courts of justice should receive such an interpretation unless the intention is clearly expressed."

78 Their Honours noted that it may not appear from the originating process that six months had elapsed from receipt of notice by the employer of the injury. It observed that if the effect of s 151C(1) was to make proceedings commenced in contravention of the section invalid, the court would be implicitly required to undertake a jurisdictional inquiry in each case as to whether or not the section had been satisfied. It was noted that this was not the usual function a court undertook when called upon to exercise judicial power in a matter that was, prima facie, within its jurisdiction. Their Honours also noted that such an inquiry was likely to be complex, especially when regard was had to the terms of s 151C(2). It might be noted at this point that the approach of Mason P in the Court of Appeal to this question was similar: see especially at [42] and [46].

79 Their Honours’ conclusion in respect of the proper construction of s 151C is to be found at [34] as follows:

“The better view is that the provision does not inevitably result in the invalidity of proceedings commenced in contravention of it, either for want of the court's jurisdiction or because the court has no jurisdiction except to accede to a defendant's application (whenever brought) to set aside the proceedings and to do so without regard to the procedural history and the relevant Rules of Court.”

80 It followed, therefore, that the effect of non-compliance in any case would depend upon the actions of the defendant in the context of the relevant rules of court. Their Honours noted, at [37]:

Ketteman v Hansel Properties

81 Brief comments were then made in relation to waiver. Their Honours said, at [38], that their conclusion did not depend upon the application of the concept of waiver, noting its imprecise nature. In doing so, the Court acknowledged the existence of waiver of a legal, equitable, or statutory right. Their Honours continued, at [39], that in the case before them,

“… once it is appreciated that the court has jurisdiction and that its procedural rules have been engaged, concepts such as ‘waiver’ … are confusing and imprecise … The conduct of pending proceedings by a party is relevant upon an application by that party for the exercise in its favour of a power of the court. The outcome of such an application depends not upon the exercise of the right of a litigant or upon its denial, but upon the exercise of a discretionary power given to the court. The decision of the court often will depend upon many different factors. An outcome favourable to one party cannot be described adequately in terms of the waiver of the legal, equitable or statutory rights of the unsuccessful party.” (Citation omitted)

82 As I have said, the opponent wishes to waive his entitlement to lump sum compensation. There is nothing in the decision of the High Court in Berowra Holdings that denies that a person may waive an entitlement to a benefit conferred solely for that person’s benefit. There are a number of authorities which support the proposition: see Admiralty Commissioners v Valverda; Brown v The Queen; Bonner v Wilkinson (1822) 5 B & Ald 682 at 686; (1822) 106 ER 1340 at 1341; Rumsey v The North Eastern Railway Co (1863) 14 CBNS 641 at 649; 143 ER 596 at 600; 143 ER 596 at 600; The Commonwealth v Verwayen.

83 In Admiralty Commissioners v Valverda the Privy Council was dealing with a provision of the Merchant Shipping Act 1894 (UK), that provided, relevantly, that “no claim shall be allowed” unless the consent of the Admiralty to the prosecution of the claim was proved. Wright LJ, at 185, considered that the object of this provision was difficult to define with any certainty, but was clearly based on public consideration. His Lordship then remarked, what must now be considered a commonplace observation, that:

“Wherever there is a question whether there can be contracting out or waiver of statutory provisions, the problem must be solved on a consideration of the scope and policy of the particular statute. Little help can in general be derived from other statutes.”

“Thus statutes which deal with procedural or evidential requirements, such as the Statute of Frauds or the Public Authorities Protection Act, 1893, may in some cases be the subject of waiver, though even in Acts of that character considerations of the purpose of the particular statute may exclude waiver or contracting out. But such Acts are far removed from an imperative public enactment such as s 557, which governs the position of a State Department and State servants.”

84 The WIM Act governs, in a complex array of provisions, the processes by which workers are to access their entitlements following a work place injury. It places obligations on both workers and employers. The WCA governs the entitlements of a worker who has suffered a workplace injury. The social and public policy in enacting both the WIM Act and the WCA is well known. The public purpose in limiting small claims was to secure the economic viability of insurers. There is also a public purpose in the legislation in its attempts to achieve the proper medical treatment of injured employees, their return to work, the expeditious assessment of their claims, and the settlement of claims so far as practicable.

85 However, notwithstanding the clear policy objectives underlying it, the combined operation of both Acts focuses upon the processes by which individuals may access certain statutory entitlements and the manner in which the employer is to deal with claims for those entitlements. In other words, the legislation regulates the private rights of both employees and employers by processes and procedures designed to achieve the objects of the Act. The legislation here, therefore, is quite different from the legislation considered in Admiralty Commissioners v Valverda, where the consent of a public official was required for the prosecution of a claim.

86 Whilst the scheme of the legislation is such as to call for a series of sequential procedural steps, each intended to be complied with, I can see no relevant difference, as a matter of principle, in an employer being prepared not to plead a limitations provision, to not insisting, for example, on a pre-filing statement. If a medical assessment certificate is only conclusive in relation to the proceedings for which it was obtained, there seems no reason in principle why a party must bring a lump sum compensation claim at least at the same time as bringing the work place injury claim, at the risk of being barred from bringing a claim for workplace damages. Even on the construction I have preferred of s 326, a party could still have a medical assessment and use the certificate only in the work place injury claim. Whilst the mediation provisions might arguably be more directed to the public policy of cheaper resolution of disputes, it is not apparent to me that a failure to mediate would make the proceedings not maintainable in any circumstance.

87 It follows, therefore, that I would reject the claimant’s contention that the opponent’s claim was not maintainable as no claim for lump sum compensation was brought before or at the same time as the claim for work injury damages. However, that does not mean that the claimant cannot plead, in response to a claim for work injury damages, that there has been non-compliance with the procedures and processes specified in the legislation. Just as a defendant may plead a statute of limitations, it may plead non-compliance with the legislation. In Berowra Holdings, the plurality judgment stated, at [38], (see above at [81]) that in respect of a time provision, a court was required to deal with any such application in accordance with ordinary discretionary principles that may depend on many different factors.

88 On the construction I have given to the legislation, the same approach would apply. It is difficult to perceive of a circumstance where a court would not accede to a defendant’s application to strike out proceedings that did not comply with the procedural requirements of the Act, unless there was some conduct of the defendant that was relevant to the exercise of the discretion. However, there may be other circumstances and my comments are not to be taken as in any way confining the Court’s discretion in dealing with such an application. In this case, the claimant, as the defendant to the proceedings in the District Court, resisted the opponent’s claim at an early point in the proceedings, on the basis that he had not complied with the relevant statutory requirements.

89 The claimant also made it apparent, at least in its argument on the appeal, that it seeks compliance with all of the pre-trial procedures prescribed by the WIM Act. In those circumstances, subject to the consideration of the opponent’s argument that his claim was not governed by the legislation at all, I am of the opinion that the trial judge wrongly exercised her discretion in dismissing the opponent’s motion.

90 The opponent conceded that if his claim is one that must comply with Ch 7, then there has been no compliance and, as I understand it, the appeal should be allowed. He contended, however, that he does not have a claim for “work injury damages” as defined in s 7 of the WIM Act, but that his claim is merely for “damages”. He said on that basis, he falls entirely outside the requirements of Pt 7. In this regard, he relied upon the statement of Basten JA in Kimberly-Clarke Australia Pty Limited v Thompson [2006] NSWCA 264; (2006) 67 NSWLR 187, at [43], that:

“Absent an opportunity for there to be a claim for lump sum compensation, neither s 281 nor s 315 can have operation. Accordingly, even if the plaintiff’s claim is a work injury damages claim to which Chapter 7 applies, contrary to the view expressed at [56] below, s 315 has no operation in relation to it and the specific complaint raised by the employer must fail.”

91 I agree with Young CJ in Eq’s analysis of Kimberly-Clark Australia Pty Limited v Thompson at [169]-[172], that his Honour’s comments were not part of the ratio of the case. I will return, however, to the question whether his Honour’s comments have any application to this case. In doing so, it must be recognised that the claim in Kimberley-Clark was a widow’s claim, not a claim under the WCA.

92 The opponent’s argument is based upon his contention that as at the date of his injury, that is, 24 March 2000, there was no entitlement under the provisions of ss 66 and 67 of the WCA for lump sum compensation for psychiatric injury. His claim is for psychiatric or psychological injury and severe aggravation of his pre-existing asthma. The opponent, for the purposes of securing his entitlement to bring his proceedings on the basis that he was injured in the course of his employment, relied upon the finding of the trial judge that any physical symptoms that he was suffering, such as a marked stutter, dizziness and balance problems and a right hand tremor, were symptoms of a psychiatric condition and could not, at the time of his accident, found a claim for lump sum compensation. Alternatively, as I have already examined above, he maintained his position that he would abandon any claim for lump sum compensation if necessary.

93 The opponent’s argument then proceeded with a review of the provisions referred to in Sch 6 Pt 18C, cl 8 of the WCA. As already explained above, pursuant to cl 8, the procedural provisions of the WIM Act apply to cases where an injury was received before the 2001 amendments came into effect, but where a claim was made after the commencement of the amendments.

94 The opponent then dealt with the provisions of the WIM Act commencing at s 280A, which he recognises are those arguably preventing him from making a claim. He referred to ss 280A, 281 and 282-286. I pause to note that s 284 is excepted from the terms of cl 8 and ss 285 and 286 are not presently relevant.

95 The opponent’s argument next referred to Pt 1 of Ch 7, which comprises s 250, (the definition provision), and s 251, which provides that Ch 7 applies to and in respect of new claim matters only, unless otherwise provided for in that chapter. He noted that those provisions were inserted by the Workers Compensation Legislation Amendment Act 2001, Act No 61, and were operational as and from 1 January 2002. The definition of “work injury damages” is contained in s 250 of the WIM Act which, the opponent points out, is not picked up in Sch 6 Pt 18C, cl 8 of the WCA. He contended that the heading to Pt 2, Div 2 (comprising ss 259-264), “Making a claim for compensation or damages”, does not assist, because the heading does not form part of the Act. That is not correct: see the Interpretation Act 1987, s 35(1). Leaving that aside, the opponent then said there is no definition of “claim” in Ch 7, so that it is necessary to have regard to its meaning in s 4. He stated that one is then driven back to s 280A.

96 He then made this submission:

“If the plaintiff does not have a ‘claim’ for lump sum compensation in respect of the injury (as found by the trial judge in this case) the plaintiff does not have a ‘claim’ for work injury damages. Consequently, all of the references to a ‘claim’ in Division 2 do not apply [to the opponent] because he is not entitled to make a claim for work injury damages.”

97 The opponent contended, therefore, that the pre-trial requirements of the WIM Act do not apply to the claimant and Sch 6 Pt 18A, cl 8 has no effect in regard to his rights.

98 The claimant resisted this approach to the opponent’s claim. It contended that the opponent’s physical condition was, or at least arguably was, compensable under ss 66 or 67 of the WCA. However, whatever position the opponent takes in relation to such claims, the claimant contended that the operation of Sch 6 Pt 18C of the WCA meant that his claim is subject to the regime provided for by Ch 7 of the WIM Act.

99 In my opinion, the opponent’s argument must be rejected. The plain reading of Sch 6 Pt 18C(8) of the WCA is that the specified procedural provisions of Ch 7 of the WIM Act relate to the making of a claim even if the claim is an existing claim. “Claim” and “existing claim” are defined in s 4 and, in turn, take one to the definition of “work injury damages” in s 250. It was unnecessary, as a matter of drafting, for Sch 6 Pt 18C(8) to refer to the definition provisions of Ch 7 Pt 1 for a claim for work injury damages as defined within that Division, to be incorporated within its reach.

100 Further, Attileh is authority that claims for damages for an injury to which the WCA applies are subject to the procedures of the WIM Act. The opponent’s claim is a common law claim for damages, which by the combined operation of the WIM Act and the WCA is a claim for work injury damages and is governed by the procedures of the WIM Act.

101 In my opinion, leave to appeal should be granted and the appeal allowed with costs.

102 YOUNG CJ in EQ: The Court is dealing in a concurrent hearing with an application for leave to appeal, and if leave is granted, the hearing of an appeal against a decision made by Balla DCJ.

103 Although never actually conceded, the opponent has said nothing against leave to appeal being granted and has fully argued the appeal.

104 Thus, in due course, we will formally order that leave to appeal be granted and fix a time for filing the notice of appeal.

105 The case is an awkward one because there is no doubt that the worker in question suffered an injury on 24 March 2000 when he was driving his employer’s motor vehicle. The problem for the Court is that his claim might need to be summarily dismissed because of technicalities in the legislation.

106 In brief, what occurred was that a container of solvent overturned in the boot of the vehicle, it emitted fumes, the fumes were inhaled by the worker and it is said that was why he lost control of the vehicle and crashed it into a tree.

107 The plaintiff worker (whom I must call the opponent to avoid confusion in the text of these reasons) commenced proceedings in the District Court Motor Accidents List in respect of the accident in 2003. He complied with the pre-trial requirements for that sort of claim and he filed his claim within time. However, it was realised in 2005 that in the light of the decisions in this Court and the High Court, limitation on damages unacceptable to the opponent might apply.

108 However, insofar as the opponent claims for work injury damages under the Workers Compensation Act 1987, the claimant alleges that he has not complied with the procedural requirements of the Workplace Injury Management and Workers Compensation Act 1998 (the WIM Act).

109 On 26 October 2006, the claimant filed a notice of motion in the District Court in which the principal claim was that the opponent’s claim for work injury damages be dismissed for failure to comply with ss 280A, 313, 315 and 318A of the WIM Act and ss 151B, 151E, 151G and 151H of the Workers Compensation Act.

110 The motion was heard by her Honour Judge Balla on 21 and 22 February 2007 and 18 May 2007. Her Honour gave judgment dismissing the motion on 1 June 2007.

111 To put the argument in context, it is necessary to set out some of the relevant statutory provisions.

112 The WIM Act in s 280A provides:

“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.”

113 The opponent never made a claim for lump sum compensation, a claim that would have had to be made under s 66 of the Workers Compensation Act. He says that he was not entitled to lump sum compensation.

114 The opponent argued that s 280A does not have any operation where there can be no claim for lump sum compensation and relied on the decision of this Court in Kimberly-Clark Australia Pty Ltd v Thompson (2006) 67 NSWLR 187 at 197 [43].

115 The claimant submitted to the learned primary judge that this was a case where there could have been lump sum compensation.

116 The opponent’s counsel submitted that his client’s complaints could not have been the subject of lump sum compensation as at 2000. However, if that was wrong, he expressly abandoned any such claim.

117 The primary judge seems to have considered that such abandonment would be sufficient to show that there was no valid claim for lump sum compensation.

118 However, she also specifically held that, as at the date of the accident, there was no relevant entitlement of the opponent to lump sum compensation under the Workers Compensation Act.

119 The judge thus ruled that s 280A did not apply in the present case.

120 I should note that part of the argument before the primary judge was the difference in the legislation as at the day of the accident and subsequently. The legislation was significantly amended by the Workers Compensation Legislation FurtherAmendment Act 2001 between the date of accident and the commencement of the litigation. I can pass over this complication for the present.

121 The primary judge made other orders excusing delay and extending time.

122 The claimant says that the primary judge was in error on every point. It says that, viewed as at the date of the accident and under the legislation then in force, there was a claim for lump sum compensation in respect of the opponent’s alleged stutter, brain damage and right hand tremor.

123 Secondly, she wrongly held that the opponent did not have to comply with s 280A of the WIM Act.

124 Thirdly, the primary judge should not have granted the extension of time she did.

125 The matter came on for hearing before us on 16 April 2008. Mr M Joseph SC and Mr S Kettle appeared for the claimant and Mr T McKenzie for the opponent.

126 After the Court had fully heard Mr Joseph, Mr McKenzie requested that he put his submissions to the Court in writing. This request was granted and the remainder of the matter was dealt with in writing, the final submissions being received shortly after 12 May 2008. It should be noted that the opponent’s submissions were joint submissions of Mr H Kelly SC and Mr McKenzie.

127 Mr Joseph put that it was necessary to trace the procedural requirements through the WIM Act. The vital sections are in Ch 7 Part 2 Division 2 and Part 3 Division 4 (ss 259-264 and ss 280A-282) which were introduced in their present form in 2001.

128 Section 259 provides that Part 2 Division 2 applies to the making of claims even if the injury that caused the claim occurred before the 2001 Act amendments.

129 Section 260 requires (it uses the word “must”) a claim to be made in accordance with the applicable WorkCover Guidelines.

130 Section 261 provides time limits for the making of claims.

131 Section 262 is as follows:

“Court proceedings for the recovery of work injury damages cannot be commenced until a claim for the damages has been made.”

132 The Workers Compensation Act in ss 66 and 67 provides that a worker may obtain lump sum compensation for permanent impairment and for pain and suffering respectively. In addition and as a quite separate matter, Ch 7 of the WIM Act provides for work injury damages.

133 Section 250(1) of the WIM Act (in Ch 7) defines “work injury damages” as damages recoverable from a worker’s employer in respect of injury or death of the worker caused by the negligence or other tortious conduct of the employer.

134 Section 263 of the WIM Act requires that, as far as practicable all claims under ss 66 and 67 of the Workers Compensation Act be made at the same time. Section 280A, which I have already set out, applies to work injury damages.

135 Section 281 requires the person on whom a claim for lump sum compensation or work injury damages is made to determine the claim swiftly either by accepting liability and making a reasonable offer of settlement or by disputing liability and in either case indicating whether or not there is a dispute about the degree of permanent impairment.

136 Claims for work injury damages may be commenced in any court. However, Ch 7 Part 6 (ss 311-318I) imposes procedural obligations on the parties.

137 If there is a dispute about whether the degree of permanent impairment exceeds 15%, then unless the defendant accepts it is above 15%, the dispute must be resolved by an approved medical specialist.

138 Section 318A of the WIM Act prescribes mandatory mediation before a work injury damages claim goes to court. The mediation is a more active mediation than is usual in ordinary civil cases. The mediator has power to subpoena and call for documents (see s 318D of the WIM Act which incorporates ss 357-359).

139 Sections 151G and 151H of the Workers Compensation Act provide a limitation on the types of damage that may be awarded in a claim for work injury damages and provide that no damages are to be awarded unless the worker has suffered at least a 15% permanent impairment.

140 Mr Joseph puts that the scheme is that there must be an early assessment of the degree of permanent impairment. To ensure that this occurs, the worker’s claim for s 66 compensation and for work injury damages must be made concurrently, the worker then assessed by the appropriate medical people before there can be litigation.

141 Thus it is imperative that the worker be assessed no matter when the injury occurred. It is only if he or she is assessed as surmounting the 15% barrier that any claim can succeed.

142 Accordingly, Mr Joseph puts, a worker cannot waive a claim under either section 66 or s 67. It is irrelevant that the worker in fact made no claim under s 66 if he or she had such a claim.

143 In the present case, Mr Joseph put that there was a claim under s 66 and thus the opponent had not complied with the mandatory procedural requirements of the legislation and his claim for work injury damages ought to be dismissed.

144 Although the primary judge did find that there was no claim in the opponent under s 66, she did not need to rule on the matter because she considered that the abandonment of any such claim put an end to that issue in any event. If Mr Joseph’s submissions are accepted, it was not competent for the worker to abandon any claim he may have had.

145 However, Mr Joseph says the fact that the worker asserted claims for which compensation under s 66 could be payable is sufficient. The statute focuses on the claims that are made.

146 In summary then, Mr Joseph puts that the opponent has not complied with s 280A of the WIM Act, that s 313 of the WIM Act prevents the service of a pre-filing statement and the commencement of court proceedings, s 315 of the WIM Act has not been observed and there has been no mediation under s 318A.

147 There was some debate before us as to whether, if we upheld Mr Joseph’s submissions the opponent’s claim would be forever barred or whether he could even now comply with the procedures of the WIM Act. Although Mr Joseph hinted that his client might waive time limits, s 261 of the WIM Act would put some bar in the way of the opponent.

148 It was also noted that the opponent could if he so desired continue his claim under the Motor Accidents Compensation Act 1999.

149 In his written submissions, Mr McKenzie put that the primary judge had actually determined as a matter of fact that the opponent had no relevant entitlement to lump sum compensation. I must say that I do not so read her Honour’s judgment.

150 Mr McKenzie acknowledged that the opponent had not complied with many of the procedural requirements of the WIM Act. He said this was irrelevant as the question for the Court was whether he need to comply with them.

151 Mr McKenzie puts that Ch 7 of the WIM Act simply does not apply to the plaintiff’s claim in the present case because of the definition of “claim” in section 4 of the WIM Act together with the operation of s 280A of the WIM Act.

152 Section 4 of the WIM Act defines “claim” as meaning:

“a claim for compensation or work injury damages that a person has made or is entitled to make”

153 The opponent says that his claim is not a work injuries claim as now defined. It is a claim within s 4 for damages in respect of his injury.

154 The opponent says that he had a claim before 2001 which he is putting forward. He was not bound by the complicated procedural provisions which came into force in 2001.

155 In support of these submissions, counsel discussed the operation of Schedule 6 Part 18C of the Workers Compensation Act, containing the provisions consequent on enactment of the 2001 amendments.

156 In reply, Mr Joseph put that the scheme of the legislation leaves no room for the suggestion that there is a category of common law claims against an employer which are not work injury claims.

157 He notes the wide definition of “work injury claim” in s 250(1) of the WIM Act.

158 I consider that it is impossible to construe the WIM Act in the way the opponent suggests. The provision which have been set out seem to me to indicate that there are a closed number of categories of claims that can be considered and that these must be considered under the procedural provisions of the legislation whether or not they occurred after the passing of the 2001 amendments.

159 The construction of the legislation advanced by Mr Joseph, on the other hand, seems to marry together the various provisions of the legislation in a logical way. However, that impression must be tested against the suppositions inherent in it and previous decisions of the Court.

160 Mr Joseph’s submissions rely on three debatable propositions, viz:

(a) The medical assessment for s 66 compensation and work injury compensation is the same;

(b) A claimant cannot abandon a claim that he or she may have under
ss 66 or 67 and claim work injury damages;

161 Proposition (a) is contrary to the decision of this Court in J C Equipment Hire Pty Ltd v Registrar of Workers Compensation Commission of NSW [2008] NSWCA 43. This holds that an assessment of impairment for the purposes of s 66 does not necessarily fix the assessment for the independent work injury damages claim.

162 This being so, there is no overriding purpose in having both claims made at the same time. However, merely because there is no apparent reason for it, that is no reason for not complying with s 280A.

163 Likewise, proposition (b) must be questioned. There are many places in the legislation where the parties are authorised to agree and settle their disputes. There does not seem to be any reason why a party cannot at any stage in the resolution process decide to abandon a claim either because he or she realises that, in the light of additional material it is unsustainable or because it is considered peripheral and uneconomic to run it at trial or otherwise.

164 Proposition (c) may well be correct. The scheme of the legislation is that material must be amassed and presented in a certain way. There is not to be evaluation of the material at the early stage. One merely looks at the claim made.

165 Mr Joseph says that to qualify as a “claim” the assertions must be in accordance with the Guidelines prescribed under s 260 and accordingly, no claim has even yet been made. It is clear from s 259, that ‘claim’ here includes claim for work injury damages.

166 However s 260 itself shows that the rule as to forms of claims is not absolute. The parties have been in dispute for over five years and what the opponent is asserting is quite plain.

167 If one looks at the particulars filed in the District Court, one can see what assertions of damage are made by the opponent.

168 The question then is whether any of these amounts to the “loss of a thing” under s 66 as it existed in 2000.

169 If no claim is made for s 66 compensation, then Kimberly-Clark Australia Pty Ltd v Thompson (2006) 67 NSWLR 187 at 197 [43] appears to say that there is no requirement to comply with ss 281, 315 or 318A of the WIM Act.

170 The reason why s 315 is inapplicable is that there are incorporated references in it to s 281, and s 318A is then dependent on s 315.

171 However, it must be remembered that the prime thrust of the Kimberly-Clarke case is that a widow’s death claim is not a work injury claim and observations such as those made by Basten JA in [43] were supportive reasons rather than part of the ratio.

172 It was clear in that case that s 281(6) did not apply and thus s 315 and section 318A fell with it.

173 However, despite the fact that s 281 immediately follows s 280A, there does not appear to be any logical reason why ss 281, 315 and 318A do not apply, merely because s 280A is inapplicable.

174 Indeed there is a good reason for the contrary view. The legislation operates so that a work injuries claim damages cannot succeed unless there is the concession that the plaintiff has suffered permanent impairment in excess of 15% or that a specialist medical assessor has so determined. Unless there is a gateway into that assessment process, the claim cannot succeed.

175 It must be acknowledged that the Kimberley-Clark case does point out a basal flaw in Mr Joseph’s argument that is that there are some situations which fall outside the general thrust of the standard procedures laid down in the legislation. Further it shows that as various provisions are each dependent on others, if a case falls outside one provision, it may fall outside all.

176 However, despite this and despite the confusing maze of statutory provisions, it would seem to me that Mr Joseph’s basic approach is correct.

177 On my approach, the findings of the primary judge do not substantially impact on the principal problem that the opponent has in these proceedings.

178 It follows that the appeal must be allowed with costs, with the opponent having a certificate under the Suitors’ Fund Act 1951.

179 I should note that it is unfortunate indeed that there is not some provision in the legislation to cover the present type of case.

180 Basically the opponent and his solicitors have proceeded in a logical fashion. However, changes in the legislation and approach to the legislation by the courts have, without attributable blame, meant that an injured plaintiff will be denied his day in court.

181 As appears in the submissions, it may be that the opponent has no claim as his impairment is less than 15%. We are told that medical views differ on this question. However, this does not remove the stigma that the opponent will never know.

182 It may be possible, despite s 261 of the WIM Act, for the parties to agree that the opponent can commence again from taws and that there can be a proper medical assessment and mediation. All we can do is to express a hope.

183 Because of what I have said above, I do not need to consider whether the primary judge was correct in extending time.

184 The above reasons demonstrate that the claimant was entitled to the order sought in its notice of motion before the District Court, omitting reference to s 280A of the WIM Act. However, I believe it is better practice not to refer to the actual sections in the order.

185 I would propose the following orders:

1. Leave to appeal granted.

2. Notice of appeal to be filed within seven days.

3. Appeal allowed.

4. Orders of Balla DCJ set aside.

5. In lieu, order that the opponent’s claim for work injury damages be dismissed.

6. Order that the opponent pay the claimant’s costs of the appeal.

Suitors’ Fund Act

186 GROVE J: I have had the opportunity to read the judgment of Young CJ in Eq in draft. I agree with the orders which he proposes. His Honour has described the facts and circumstances to the extent necessary and I need not repeat them. My agreement to the proposed orders is reached for the reasons which follow.

187 There is no dispute that, if s 280A of the Workplace Injury Management and Worker’s Compensation Act 1998 (the WIM Act) applies, it was obligatory for the opponent to comply with various pre-trial procedures and he has not done so. This is because s 259 of the WIM Act provides that certain of its provisions apply even though the incident upon which the opponent wishes to sue occurred before the commencement of that legislation.

188 Section 280A reads (and I will include the heading):

Claim for lump sum compensation a pre-condition to damages claim

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.”

189 As noted by the learned trial judge it was the opponent’s submission to her that the section did not apply because he did not have an entitlement to lump sum compensation. He relied upon a passage from the judgment of Basten JA (Ipp JA concurring, Bryson JA agreeing in the conclusion for separate reasons) in Kimberly-Clark Australia Pty Limited v Thompson (2006) NSWLR 187 at 197:

“Absent an opportunity for there to be a claim for lump sum compensation, neither s 281 nor s 315 can have operation. Accordingly, even if the plaintiff’s claim is a work injury damages claim to which Ch 7 applies, contrary to the view expressed at 200 [56] infra, s 315 has no operation in relation to it and the specific complaint raised by the employer must fail.”

190 Her Honour further observed (as remains the opponent’s stance) that if any claim for lump sum compensation might be perceived, it was abandoned and she held that there was “no relevant entitlement to lump sum compensation” as might be assessable pursuant to the Worker’s Compensation Act 1987.

191 The inhibitory words of s 280A do not operate only if the injured worker can be perceived to have a claim for lump sum compensation which will succeed. The provision requires the making of a claim not the demonstration of an entitlement. If a claim for work injury damages is desired to be pursued in respect of an injury then it cannot be made unless a claim for lump sum compensation is made in respect of the injury before or at the same time. It is conceivable that a claim for lump sum compensation may ultimately fail, for example, by reason of a subsequent finding that the resulting impairment was not permanent, but the unambiguous words of the provision require the claim to be made. Its operation is not dependent upon the determination of the claim.

192 It was therefore erroneous to apply a test which focussed upon whether there was an entitlement to lump sum compensation. Nor would the statutory obligation to make a claim be avoided by a proclamation of abandonment.

193 That conclusion is not inconsistent with the ratio of the decision in Kimberly-Clark which did not formulate a test of determining the potential success of the claim by a worker for lump sum compensation. The obligation to comply with the provisions of the WIM Act in that case was held to be inapplicable because the claimant seeking damages for nervous shock was the widow of the worker and was herself a stranger to the employment relationship.

194 As above stated, I agree with the orders proposed by Young CJ in Eq.

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Citations

Wattyl Australia Pty Ltd v McArthur [2008] NSWCA 326

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CITATION:	Wattyl Australia Pty Limited v McArthur [2008] NSWCA 326
HEARING DATE(S):	16/04/08 [then written submissions]
JUDGMENT DATE:	28 November 2008
JUDGMENT OF:	Beazley JA at 1; Young CJ in Eq at 102; Grove J at 186
DECISION:	1. Leave to appeal granted. 2. Notice of appeal to be filed within seven days. 3. Appeal allowed. 4. Orders of Balla DCJ set aside. 5. In lieu, order that the opponent's claim for work injury damages be dismissed. 6. Order that the opponent pay the claimant's costs of the appeal. 7. Order that the opponent receive a certificate under the Suitors' Fund Act 1951.
CATCHWORDS:	WORKERS COMPENSATION- Opponent worker claims work injury damages- Opponent did not make a claim for lump sum compensation before or at the same time as required by s 280A WIM Act 1998- Whether primary judge in error in finding that the opponent did not have to comply with s 280A and Ch 7 procedural provisions because he had no entitlement to lump sum compensation- Whether primary judge in error in finding that in any event, the opponent had abandoned any such lump sum claim- Held that in the light of Sch 6 Pt 18C Workers Compensation Act, Ch 7 procedural provisions apply equally to existing claims prior to 2001 amendments- Legislative scheme is focussed on the making of a claim, rather than on one's entitlement or likelihood to succeed- Section 280A acts as gateway to ensure work injury claims cannot succeed unless the plaintiff has suffered permanent impairment in excess of 15%- Statutory obligation to make a claim cannot be avoided by abandonment.
LEGISLATION CITED:	Interpretation Act 1987, s 35 Statute of Frauds 1677 (Eng) 24 Car II c 3 Workers Compensation Act 1987, ss 2A, 66, 67, 149, 151, 151A, 151B, 151C, 151D, 151DA, 151E, 151F, 151G, 151H, 151L, Sch 6 Pt 18C cl 8 Workers Compensation Legislation Amendment Act 2001 Workplace Injury Management and Workers Compensation Act 1998, ss 3, 4, 7, 41, 43, 44, 45, 47, 250, 251, 259, 260, 261, 262, 263, 280A, 281, 282, 283, 285, 286, 312, 313, 314, 315, 318A, 318D, 320, 321, 322, 323, 325, 326
CATEGORY:	Principal judgment
CASES CITED:	Admiralty Commissioners v Valverda; Brown v The Queen; Bonner v Wilkinson (1822) 5 B & Ald 682; (1822) 106 ER 1340 Allianz Australia Insurance Limited v GSF Australia Pty Limited [2003] NSWCA 174; (2003) 57 NSWLR 321 Attileh v State Rail Authority [2005] NSWCA 64; (2005) 62 NSWLR 439 Berowra Holdings Pty Limited v Gordon [2006] HCA 32; (2006) 225 CLR 364 CSR Limited v Eddy [2005] HCA 64; (2005) 80 ALJR 59 Gordon v Berowra Holdings Pty Ltd [2005] NSWCA 27; (2005) 62 NSWLR 427 J C Equipment Hire Pty Ltd v Registrar of Workers Compensation Commission of NSW [2008] NSWCA 43 Kimberly-Clark Australia Pty Ltd v Thompson (2006) 67 NSWLR 187 Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7; (1938) 59 CLR 369 Project Blue Sky v ABA [1998] HCA 28; (1998) 194 CLR 355 Rumsey v The North Eastern Railway Co (1863) 14 CBNS 641; (1863) 143 ER 596 The Commonwealth v Mewett [1997] HCA 29; (1997) 191 CLR 471 The Commonwealth v Verwayen [1990] HCA 39; (1990) 170 CLR 394
PARTIES:	Wattyl Australia Pty Limited (Appellant/Claimant) John Gary McArthur (First Respondent/First Opponent) SGIO Insurance Limited (Second Respondent/Second Opponent)
FILE NUMBER(S):	CA 40404/07
COUNSEL:	M Joseph SC and S Kettle (Appellant/Claimant) T McKenzie (First Respondent/First Opponent) Submitting appearance (Second Respondent/Second Opponent)
SOLICITORS:	Hunt & Hunt (Appellant/Claimant) Graham Jones, Lawyers (First Respondent/First Opponent) Sparke Helmore Lawyers (Second Respondent/Second Opponent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 2667/03
LOWER COURT JUDICIAL OFFICER:	Balla DCJ
LOWER COURT DATE OF DECISION:	1 June 2007
LOWER COURT MEDIUM NEUTRAL CITATION:	John Gary McArthur v Wattyl Australia Pty Limited and SGIO Insurance Limited