Eckersley v Austin & Allen Pty Ltd [1992] NSWCC 19; (1992) 8 NSWCCR 459 (29 October 1992)

[1992] NSWCC 19; (1992) 8 NSWCCR 459 (2397-90)

ECKERSLEY v. AUSTIN & ALLEN PTY LTD

Compensation Court of New South Wales: Johns J

29 October 1992

PROCEEDINGS TO OBTAIN COMPENSATION - RE-OPENING OF CASE - DISCRETION TO RECONSIDER AWARD - MATTER BARRING RIGHT OF RECOVERY - ISSUE NOT RAISED IN PROCEEDINGS - COSTS - COMPENSATION COURT ACT 1984, SECTION 17(4)

ALTERNATIVE RIGHTS AND ELECTION BETWEEN DIFFERENT REMEDIES - ALTERNATIVE RIGHTS AGAINST EMPLOYER FOR DAMAGES AT COMMON LAW - EFFECT OF PROCEEDINGS FOR DAMAGES ON RIGHT TO COMPENSATION - PERMANENT LOSS COMPENSATION - COMMON LAW CLAIM COMMENCED - RELEVANT INJURY - MANDATORY PROVISION BARRING COMPENSATION CLAIM - FAILURE TO REFER TO COMMON LAW CLAIM - DISCRETION TO RECONSIDER AWARD - WORKERS COMPENSATION ACT 1987, SECTION 151V

G.D. Woods QC, for the applicant:

B.A. Odling, for the respondent

CUR ADV VULT

JOHNS J

I have before me a Notice of Motion seeking orders that the award that I made on 26 February 1992 in so far as it relates to sections 66 and 67 and the interest thereon either be set aside, or stayed pending any further order.

On 26 February 1992 I considered an application for determination by the applicant who sought lump sum payments of compensation pursuant to sections 66 and 67 of the Workers Compensation Act 1987, as amended. After consideration of the matter I found that the applicant was entitled to a sum of $20,160 pursuant to section 66 in respect of permanent impairment and a sum of $17,500 pursuant to section 67 in respect of pain and suffering resulting from such loss. I made an order for costs in accordance with Part 29 and an order for medical expenses pursuant to section 60. In respect to each lump sum I awarded interest at the rate of 12.5 per cent.

Prior to the hearing the respondent employee had instituted common law proceedings by way of a Statement of Claim. Such Statement of Claim had also been served upon the applicant employer before the commencement of the hearing. This fact was not raised in the proceedings nor was it a matter of any evidence during the hearing. It therefore was not the subject of any submissions or considerations by me in determining the issues pursuant to sections 66 and 67.

The applicant employer now brings this Notice of Motion seeking to set the award aside, in respect to sections 66 and 67, on the basis of what is contained in section 151V which states:

"Election provisions not to apply

151V(1) Section 151A (Election - damages or 'Table of Disabilities' compensation) does not apply:

(a) in respect of an injury received before 4 p.m. on 30 June 1989; or

(b) in respect of an injury received at or after that time and before the commencement of section 151A (but that section does apply in respect of any such injury if the person concerned accepts payment of permanent loss compensation after the commencement of that section).

(subs (1) am Act 94 of 1991 section 3 and schedule 1)

(2) If a person commences proceedings to recover damages, or accepts payment of damages, in respect of an injury to which section 151A does not so apply:

(a) the person is not entitled to any permanent loss compensation claimed but not yet received; and

(b) the amount of any such compensation previously paid is to be deducted from those damages.

(3) (subs (3) rep Act 94 of 1991 section 3 and schedule 1)"

Section 151V relates specifically to injuries that have taken place between the implementation of the 1987 Workers Compensation Act and the Amendments that were brought into effect on 1 October 1989. The injury to the applicant in this case occurred on 6 September 1988.

THE APPLICANT EMPLOYER'S CONTENTION

The application was made pursuant to the provisions of section 17(4), of the Compensation Court Act 1984, as amended. This section is in similar terms to section 36(2) of the Workers Compensation Act 1926. There have been a number of authorities_ that have considered the effect of the section under the 1926 Act. In dealing with the question of reconsideration these authorities provided certain limitations to the exercise, by the then Commission, of its powers of reconsideration. It is undisputed that the Commission had, and now the Court has conferred upon it a jurisdiction to reconsider its awards. Such a consideration, however, was not necessarily limited to an examination of changed circumstances or fresh evidence concerning the original circumstances. The circumstances, however, in this case have not been considered before. The reconsideration in this instance relates to a provision in the Workers Compensation Act that was brought into effect in the October 1989 legislation. However, as a general principle it was submitted that these authorities were clear in deciding that there could be no question of an estoppel or res judicata relating to the powers of the Court having regard to the wording of section 17(4). Given due consideration to the public policy of bringing litigation to finality there nevertheless remains a discretion that rests with the Court to reconsider its decisions. It was submitted that there was no limitation on the power of the Court to rescind or review its orders. (BODY v. WITHERDEN, [1963] 37 WCR (NSW) 144 at 151 & 159).

The applicant employer's contention is that the wording of section 151V(2)(a) is mandatory in its terms so that a person is not entitled to any permanent loss compensation where common law proceedings have already been instituted. In this submission the terms of the section are said to be clear and unequivocal. Now that the commencement of common law proceedings had been brought to the attention of the Court it was an appropriate matter for the exercise of the Court's discretion to rescind or review its orders.

THE RESPONDENT EMPLOYEE'S CONTENTION

It was contended by the respondent employee that the legislation being remedial was intended to have a retrospective operation and to revive certain common law rights that previously had existed. This was to be a factor for consideration.

Secondly, it was contended that once the matter got to the point of being litigated without objection and went on to an award then it was said that there was no longer a claim and therefore the provisions of section 151V(2)(a) do not apply.

In essence the respondent employee contended that the handing down of an award placed this application in a different category to that specified in (a) or (b) of the section. Alternatively the respondent employee contended the handing down of the award whilst it hadn't been paid, it had been received and therefore ought to be the subject of a deduction in the event of successful common law proceedings.

REASONS FOR JUDGMENT

There is no dispute between either of the parties that if this evidence had been put before the Court, prior to or during the proceedings, it would have been a bar to the continuation of the applicant's claim. The fact that the issue was not raised by the defendant does not, in my view, have the same consequences, in this jurisdiction, as it might have in other jurisdictions due to the ability of this court to review its decisions pursuant to the legislation. The only difference that is contended, it seems to me, by the respondent employee is the fact that there is now an award pursuant to the provisions of sections 66 and 67.

The provisions of this section do not in my view fall into the category of remedial legislation. This particular provision it seems to me denies a benefit to an applicant by forcing an applicant to choose what particular remedy he wishes to pursue. The choice made in these circumstances extinguishes the right to compensation entitlements. This section in its operation is central to the rights of the respondent employee. It can therefore be said to be a substantive provision. (McKAIN v. R.W. MILLER & CO (SA) PTY LTD, [1991] HCA 56; (1991) 66 ALJR 186)

In looking at the meaning of the section and considering the context of the surrounding provisions of the Act, the legislative history and the object which it can be inferred Parliament was seeking to obtain in endeavouring to promote the purpose of the Act, it is clear, that an injured applicant could, either be compensated by way of damages under the statutory form of common law damages, or pursuant to the lump sum provisions of the Workers Compensation Act. In relation to this legislation an injured applicant does not have the benefit of both provisions. Clearly he must make a choice and one choice disentitles him to the benefits of the other. (Hansard 2 August 1989, Minister for Industrial Relations and Employment, and Minister Assisting the Premier said:

"This Government is saying that there should be one or the other avenue open to an injured worker.")

That interpretation seems to me to give effect to the legislative intention and to deal with the detail and adverse factual patterns which the legislature cannot always foresee but must have intended to deal with if the purpose of the legislation is to be achieved. (RICKETTS v. LAWS, (1988) 14 NSWLR 311 at 314 & 315; cf: KINGSTON v. KEPROSE PTY LTD, (1987) 11 NSWLR 404 at 423)

If such an interpretation were not applied then it seems to me that the whole aim of the section would be defeated. This provision is to be complied with strictly. The applicant employer is correct in my opinion in contending that the provision is a mandatory provision requiring as an imperative that there be strict compliance with the statutory provisions. The provision imposes an obligation and a requirement of strict compliance.

Therefore in my view the respondent employee obtained an award to which he was not entitled as he had no right to such a claim once he had instituted common law proceedings by way of a service of the Statement of Claim. The provisions of section 151V are to meet the situation of an applicant who had pursued his "lump sum" rights according to the pre-1989 provision of the Workers Compensation legislation. He was, in those circumstances, to be taken as not having exercised his election. Thus the legislation enables a choice in circumstances where a lump sum payment had been received. However, in circumstances where an election is to take place any lump sum received is deducted from any verdict obtained. The clear intention of the legislature was to force an injured party to elect between one or the other remedies available but not both.

For those reasons I vacate the award that I made in favour of the worker pursuant to sections 66 and 67.

Although the applicant employer has been successful in this motion I do not propose to make an order for costs in its favour as I am of the opinion that it ought to have raised this matter either at the beginning or during the hearing. It seems to me that the only reason it didn't was that its legal representatives gave poor advice.

But for the fact that they had overlooked the fact that the Statement of Claim had been served the hearing and certainly this Motion would not have been necessary. I therefore make no order as to costs.

Solicitors for the applicant: Armstrong & Partners

Solicitors for the respondent: Parish Patience