Worker’s Application Dismissed

Sunday, January 25, 2009

The provisions providing for common law access under the Workers' Compensation and Injury Management Act (the Act) remain as procedurally complex as they were in the past legislation. Under the current Act a worker who has been assessed as having a  whole person impairment of not less than 15% must register an election to seek common law damages with the Director at Workcover and within 30 days of the Director giving notice that the election has been registered commence proceedings in the District Court.

Last year the Supreme Court of Western Australia dealt with competing applications by a worker and the employer. The worker sought a declaration that the notice in writing of registration of an election to seek common law damages was not  validly given under the Act. The  employer sought a declaration that the notice was validly given. The worker had commenced proceedings in the District Court and if the notice had  been given validly then he had comenced those proceedings out of time.

The Court was asked to consider whether the words “the Director gives the worker written notice”  should be construed as requiring that notice by post be given only  to a worker at a personal address for him or the words allow for the giving of  notice by post to an agent on the worker’s behalf. The worker’s agent in this case  was his then solicitor.

The Court held that under section 93 K(4)(c)(i) of the Act it was sufficient that the Director take steps of whatsoever kind to bring the contents of the notice to the attention of the person to be notified. On this view the  worker had received the notice validly and his application was dismissed.

This case is more interesting for the fact that there was no explanation why the worker did not commence proceedings in time given that the he received the notice from his then solicitors before the expiration of the 30 days in which he was required to commence District Court proceedings under the Act.