| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : WILLIAMS -v- SONATO HOLDINGS PTY LTD [2003] WADC 240 CORAM : BLAXELL DCJ HEARD : 4 SEPTEMBER 2003 DELIVERED : 6 NOVEMBER 2003 FILE NO/S : CIV 1971 of 2001 BETWEEN : KAREN MAREE WILLIAMS Plaintiff
AND
SONATO HOLDINGS PTY LTD
Defendant
Catchwords: Practice and procedure - Application to strike out action on the ground that the Workers' Compensation and Rehabilitation Act 1981 (as amended) prevents an award of damages - Whether or not plaintiff has reasonable cause of action - Whether or not the action is an abuse of process
Legislation: Workers' Compensation and Rehabilitation Act 1981
Result: Application dismissed
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Representation:
Counsel:
Plaintiff : Ms R A Van Heerwaarden
Defendant : Mr M M Gismondi
Solicitors:
Plaintiff : Bradford & Co
Defendant : Phillips Fox
Case(s) referred to in judgment(s):
Re Monger; Ex parte Industrial Progress Corporation Pty Ltd t/as Roofmart WA [2001] WASCA 281
Western Metals Zinc NL v Wesfarmers Transport Ltd & Anor [2003] WASCA 152
Case(s) also cited:
Bride v Peat Marwick Mitchell [1989] WAR 383
McNair v Mayne Nickless Ltd t/as Metropolitan Security Services (1997) 17 WAR 191
Re Monger; Ex parte Woodford [1999] WASC 273
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1 BLAXELL DCJ: In this matter the plaintiff claims damages for personal injuries allegedly sustained in the course of her employment with the defendant. However, the defendant has applied for orders that the statement of claim be struck out, or alternatively that the action be dismissed and judgment entered for the defendant. The ground for this application is that the provisions of s 93C and s 93E of the Workers' Compensation and Rehabilitation Act 1981 prevent any award of damages to the plaintiff.
2 For the purposes of present application I should assume that all of the facts pleaded in the amended statement of claim are correct. These are that at all material times the plaintiff was a 16 year old apprentice employed in the defendant's motor vehicle trimming business. The plaintiff was not provided with adequate supervision and was required to operate machinery, including a "kick press" which was beyond her capabilities. This machinery was situated on a cement floor which became slippery when outside conditions were wet, and at the time of her accident the plaintiff was wearing sneakers that were prone to slip when wet. On 16 August 1995 the plaintiff was operating the kick press machine when her right foot slipped causing the pedal to rebound and to strike her on the left leg, resulting in a severe knee injury. 3 Although the particulars of the injury are not pleaded, it is common ground that the plaintiff developed immediate problems in her left patella which required a lateral retinacula release to be performed in October 1995. Thereafter the plaintiff continued to suffer symptoms including left quadriceps wasting and recurrent effusions of the knee. In June 1996 she underwent a revision of the knee involving lateral release as well as antero medialisation of her tibial tubercle with the use of two small screws. 4 Following this operation there was some initial improvement, but the knee continued to be symptomatic and showed "obvious patellar mal-tracking". The plaintiff was ultimately advised that further surgery might result in some improvement in the condition of the knee but there could be no guarantee. She was also advised that a prolonged recovery period would follow such a further operation. 5 At all material times the plaintiff claimed to have sustained a "relevant level of disability" of not less than 30 per cent within the meaning of s 93D of the Workers' Compensation & Rehabilitation Act 1981 ("the Act"). The defendant did not agree with this assessment, and on 14 September 2000 the matter came on for a review by a Review Officer pursuant to s 84ZA of the Act. The Review Officer determined
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that the plaintiff had sustained a degree of disability of less than 16 per cent, and in doing so accepted the assessments of two orthopaedic surgeons including Mr Greg Witherow. 6 The plaintiff commenced the present action on 30 July 2001, which was less than one month prior to expiration of the relevant limitation period. It is relevant to note that at all material times the plaintiff had been in receipt of weekly payments of workers' compensation, and did not make the election contemplated by s 93E(3)(b) of the Act. Accordingly, it will only be possible for the plaintiff to obtain an award of damages in the present action if "it is agreed or determined that the degree of disability is not less than 30 per cent …". 7 The defendant brings the present application on the basis that the relevant determination by the Review Officer that the disability was "less than 16 per cent" makes it impossible for the plaintiff to obtain an award of damages. It is said that the plaintiff accordingly has no reasonable cause of action and that the action is an abuse of process of the Court. 8 In answer to this application, the plaintiff has filed affidavits which establish that she is scheduled to undergo further operative procedures on her knee as from 18 December 2003. The operating surgeon will be Mr Greg Witherow who in a report dated 28 August 2003 (tendered by consent) has stated as follows:
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have a patella that one can alter the articulation of, then the only real option for her will be some form of replacement. It is possible that she could have an unforeseen complication of the surgery such as an infection, although in having done a number of these cases it is not a problem we have currently encountered. Therefore the best and worst case scenarios would be – if we can successfully articular cartilage graft her patella she could have a knee that probably had a disability level in the vicinity of 5%. I would have thought that the most likely worst case scenario would be if her symptoms are unaltered. I accept that it is potentially possible that if she sustained an unforeseen complication we could make her knee symptoms worse, although the chances of that are extremely unlikely." 9 The plaintiff contends that although the proposed surgery is likely to improve the condition of her knee, there is nevertheless the risk of complications which may conceivably increase the level of disability to more than 30 per cent. In the unlikely event of such an adverse outcome s 93E of the Act would not bar an award of damages. Accordingly (and on this contingent basis) it is said that the plaintiff has a reasonable cause of action which is not an abuse of process. 10 In Western Metals Zinc NL v Wesfarmers Transport Ltd & Anor [2003] WASCA 152 the Full Supreme Court considered the effect of the most recent amendments to the Act including s 93C and s 93E, and went on to state: "Given that the Compensation Act has been amended to remove the express prohibition on commencing an action, it must be assumed that Parliament has now deliberately chosen not to prevent the bringing of an action. There may be good reasons of policy for directing the prohibition to the stage of the award of damages, rather than that of institution of the action,. For example, as Nisbet DCJ pointed out in Thomas v Arimco Mining Pty Ltd (2000) 24 SR (WA) 142, it may be that a limitation period might be about to expire and a worker might need to institute proceedings at a time at which it was not clear whether or not the worker had a relevant level of disability. In this context, it should be noted that where the degree of disability is between 16 and 29 per cent, the statutory scheme is
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that an election by the worker must be made at an early stage, but that there is not such a time limit in relation to a degree of disability of not less than 30 per cent. Of course, it would plainly be vexatious to institute proceedings where there was no possibility that it could ever be established that a relevant degree of disability existed, and in an appropriate case such a proceeding might be struck out. Further, it would generally be oppressive to require a defendant to incur expense in defending proceedings where it was not clear whether or not damages could be awarded, and one would usually expect the court to order a stay of proceedings until the provisions of s 93E(3) had been complied with." 11 In Re Monger; Ex parte Industrial Progress Corporation Pty Ltd t/as Roofmart WA [2001] WASCA 281, the Full Supreme Court also considered the nature of a review and determination under Part IIIA of the Act. Although the Court did not come to a final conclusion on the point, Anderson J (with whom the other Judges agreed) could find nothing in the legislation to support the notion that the review determination in that matter was finally binding as to the degree of disability. His Honour also noted s 93E(8), (9) and (10) of the Act, and observed that those provisions were clearly intended to provide for "an adjustment to the rights of the claimant worker in the event that his level of disability changed". 12 In the present instance the plaintiff's level of disability has been determined to be "less than 16 per cent", but in the event of an adverse outcome from the forthcoming operation there is a possibility (albeit remote) that that level will increase. If the increase was to a level of less than 30 per cent the plaintiff would still be unable to obtain an award of damages, she not having made an election pursuant to s 93E(3)(b). She would only be entitled to damages if the increased level of disability was agreed or determined to be 30 per cent or more. 13 In the event that there was such an adverse outcome to the plaintiff's surgery, it is my opinion that she would be entitled to a redetermination of the level of her disability. I base this opinion on what I consider to be a reasonable overall construction of the Act in light of the authorities I have referred to above. Although it is very unlikely that any increased level of disability will be determined to be 30 per cent or more, there is nevertheless a remote possibility that this might occur.
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14 It follows that there is not complete certainty as to the plaintiff's ultimate level of disability, and in these circumstances I consider that it would be unjust to conclude that she does not have a reasonable cause of action. For the same reasons I an of the view that the present action is not an abuse of process of the Court.
15 Given that it is very unlikely that the plaintiff will ultimately be in a position to claim an award of damages, I have come to this decision with some reluctance. I also bear in mind the potential prejudice to the defendant in having to defend a claim arising from events which occurred approximately nine years beforehand. On the other hand, I also take account of the fact that the plaintiff was a minor at the time of her accident, and does not appear to have delayed unreasonably in pursuing the options for treatment which will determine the level of her ultimate disability. 16 For these reasons the defendant's application will be dismissed.
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