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Wilson v SRA [2010] NSWCA 198. Allsop P, Giles, Hodgson, Tobias, Macfarlan JJA agreeing. 16.08.10.

Injuries before 30 June 1987 were exempt from 15% WPI constraints, the five Justice bench determined, overruling Nassim Attileh v SRA [2005] NSWCA 64; 62 NSWLR 439.

The appellant worker was raped by a State Rail senior in the early 1980s. His 2007 common law proceedings on psychiatric injury were dismissed for want of compliance with WIM Act process and thresholds: see 35 WCMS 2.

Allsop P delivered lengthy reasons, detailing statutory provisions, quoting Parliamentary speeches and a 2001 common law inquiry report, and considered interpretation authorities.

Early, the President said, in [8]: “For the reasons that follow, I would, with the utmost respect, depart from the conclusion in Attileh that causes of action for injuries received before 4 pm on 30 June 1987 are constrained by the limitations in Ch 7 of the WIM Act, at least insofar as that depends upon the phrase ‘work injury damages’ in s 250 of the WIM Act extending to cover damages for such causes of action. Thus, Mr Wilson’s claim is not precluded by any requirement for a degree of permanent impairment of 15 per cent.”

His Honour noted “No part of any available secondary material reveals any need or desire or purpose to abolish the clear distinction made in the 1989 Amending Act between injuries received before and after 4 pm on 30 June 1987 or to alter, in any way, the rights of persons who received injuries before that time and date”: in [57].

Then, “... it is critical to appreciate that neither [1987 Act] s 151U nor Pt 14 of Sch 6 was expressly amended by either the First or the Second 2001 Amending Act”: in [67].

Later [172]: “The destruction of, or imposition of a substantive restriction or limitation on, common law rights of suit for personal injury requires ‘very clear legislative intent’: Berowra Holdings PL v Gordon (2006) 225 CLR 364 at 373.

"There has been some doubt thrown on this canon of construction in its application to common law rights of suit in ‘reforming’ Acts whose purpose was to change the law: see Harrison v Melham [2008] NSWCA 67 at [2]-[11] per Spigelman CJ ... . Nevertheless, the clear expression of view by the plurality in Berowra Holdings at 373 on this very statute makes adherence to the principle mandatory.

"This is especially so when the Parliament has made a policy choice pellucid in its expression (in s 151U and Pt 14 of Sch 6) in 1987 and 1989 that the worker’s common law right to damages was not to be affected by the changes to the regime for compensation ... for injuries suffered at work.

"The position is even further reinforced by the terms of s 151 of the WC Act that that Act does not affect any liability in respect of an injury existing independently of the Act except to the extent that the WC Act otherwise expressly provides.”

Ultimately [193], “In my view, the case should be decided on the basis of the argument as ultimately presented. Mr Campbell submitted that no part of the First or Second 2001 Amending Act was sufficiently clear to amend Pt 5 of the WC Act or to otherwise impose upon a claim for damages for an injury received before 4 pm on 30 June 1987 a requirement found in Pt 5 for a 15 per cent permanent impairment as a pre-condition for the recovery of any damages.

"Mr Watson argued to the contrary and recognised that unless the First and Second 2001 Amending Acts can be seen effectively to repeal s 151U and Pt 14 of Sch 6, except only to the extent that proceedings to vindicate pre-1987 injuries had been commenced prior to 27 November 2001 or 1 January 2002, the SRA must lose.

“This is how the case should be decided,” Allsop P said.

Hodgson JA gave short, concurring reasons.

Tobias JA said, in [202], referring to the President’s reasons, “That analysis and his Honour’s conclusions drawn therefrom persuade me that I was in error in my reasoning in Attileh.”

The other Justices simply agreed.

Appeal allowed, costs to submissions.

A: Mr S G Campbell SC, Mr M L Snell, inst Carroll & O'Dea. R: Mr G M Watson SC, Mr R Gambi, inst Astridge & Murray.


Michael Alan Wilson v SRA & Anor [2009] NSWSC 537. Hidden J. 17.06.09.

Hidden J released the first respondent employer, the SRA, because the plaintiff worker, claiming psychiatric injury after sexual assault at work by the second respondent in 1981, had not complied with 1998 WIM Act procedure and thresholds.

AMS psychiatrist Dr Parmegiani had certified 9% WPI. Medical panel appeal was rejected. The employer’s position was simply that without 15% WPI, the claim could not satisfy s 260.

His Honour [34]: “However … I am satisfied that Mr Wilson’s claim is subject to the requirement of 15 % WPI because of the mandatory procedures under Ch 7 of the WIM Act. Those procedures include the threshold of 15 % WPI imposed by the October 2006 Guidelines. As I have said, those Guidelines are expressed to apply to injuries notified and claims made from 1 January 2002, even if the injury was received before that date. Nothing in those Guidelines, or in their context as part of the Ch 7 procedures, suggest that that particular guideline is directed only to claims under Pt 5 of the 1987 WCA for injuries suffered from 30 June 1987.

“The legislative scheme, including cl 8 of Pt 18C of Sch 6 to the 1987 WCA, evinces a parliamentary intention that claims for damages after 1 January 2002 are confined to the more serious class of case, delineated by the minimum 15 % WPI. That is so regardless of when the injury was sustained. By s 259(2), a claimant is relieved of that requirement only if proceedings were instituted before that date.” [35]

Later, infra [41], “I find that the provisions of Div 2 of Pt 2 of Ch 7 of the WIM Act require Mr Wilson to demonstrate 15 % WPI before he is entitled to commence proceedings for damages.”

Earlier [11], his Honour considered Attileh v State Rail Authority [2005] NSWCA 64, 62 NSWLR 439, where “… the appellant had commenced proceedings for damages against his former employer on 11 April 2002.

"All members of the court agreed that his claim was caught by cl 8, so that Div 2 of Pt 2 of Ch 7 of the WIM Act applied to it. Mason P noted at [3] that none of the procedural requirements in Div 2 had been satisfied before the statement of claim was filed. [Mason P] held that the trial judge had been correct to dismiss the proceedings, noting at [29] that it was common ground that in that event, compliance with those requirements being mandatory, the proceedings were ‘of no legal effect …’. On this, the crucial issue which determined the outcome of the appeal, Santow and Tobias JJA agreed: [59] and [60].”

To Berowra Holdings PL v Gordon [2006] HCA 32, 225 CLR 364, Hidden J said [22]: “In the plurality judgment, their Honours noted that the right to modified common law damages conferred by Part 5 remained ‘a right sourced at common law, albeit with its enjoyment regulated’ by that Part.

"After examination of authority, their Honours said, at [23], that the ‘approach of the courts has consistently been to require very clear legislative intent before treating a statutory provision as taking away common law rights of a plaintiff, where there is an alternative construction available’.

"The employer’s submission that the proceedings were a nullity was rejected.

"Non-compliance with the provision did not deprive a court of jurisdiction to entertain a claim.

"Rather, it rendered the proceedings ‘vulnerable to an application by the defendant to strike out the initiating process or to move for summary dismissal’: at [36], an application which the court would consider with ‘regard to the procedural history and the relevant rules of court’: at [34].”

Hidden J [25] noted Kimberly-Clark Australia PL v Thompson [2006] NSWCA 264, 67 NSWLR 187:

“The issue in that case was whether the procedural requirements of Ch 7 of the WIM Act applied to proceedings for damages for nervous shock brought by the widow of a worker who died of injuries sustained in the course of his employment.

"All the members of the Court, including Bryson JA, held that they did not, because the statutory concept of ‘work injury damages’ does not extend to a claim for nervous shock brought by a stranger to the employment relationship.”

Hidden J noted Wattyl Australia Pty Ltd v McArthur [2008] NSWCA 326 where a worker injured in March 2000 was bound to 1987 Act s 151H.

“The Court of Appeal held that an injured worker’s claim for damages should be dismissed because he had failed to make a claim for lump sum compensation in accordance with s 280A of the WIM Act,” Hidden J said, infra [38].

Proceedings against SRA dismissed. Costs submissions invited.

P: S Campbell SC, M Snell, inst Carroll & O'Dea. 1D: G M Watson SC, R Gambi, inst Astridge & Murray.


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