JURISDICTION	:	DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION	:	PERTH

CITATION	:	CAMPBELL as Administrator of the Estate of  COLIN CHARLES CAMPBELL deceased -v- R G C MINERAL SANDS LTD [2000] WADC 183

CORAM	:	NISBET DCJ

HEARD	:	11 JULY 2000

DELIVERED	:	21 JULY 2000

FILE NO/S	:	CIV 4407 of 1998

BETWEEN	:	EIBHLIN MARGARET CAMPBELL as Administrator of the Estate of  COLIN CHARLES CAMPBELL deceased
Plaintiff
 
AND
 
R G C MINERAL SANDS LTD
Defendant

Catchwords:
Statutory interpretation - Workers' Compensation and Rehabilitation Act 1981 - Law Reform (Miscellaneous Provisions) Act 1941 - Leave to institute proceedings granted to plaintiff worker pursuant to s 93D of Workers' Compensation and Rehabilitation Act 1981 - Plaintiff worker dies from causally independent event - Question whether cause of action survives - Question whether power to award damages survives notwithstanding provisions of s 93D of Workers' Compensation and Rehabilitation Act 1981 - Trial of preliminary issue
Legislation:
Workers' Compensation and Rehabilitation Act 1981
Law Reform (Miscellaneous Provisions) Act 1941
Result:
Preliminary issue determined

Representation:
Counsel:
Plaintiff	:	Mr P Nevin
Defendant	:	Mr K Pratt
Solicitors:
Plaintiff	:	Taylor Smart
Defendant	:	Crisp & Partners

Case(s) referred to in judgment(s):

Bank Officials' Association (South Australian Branch) v Savings Bank of South Australia (1923) 32 CLR 276

Case(s) also cited:

Barker v Edger [1898] AC 748
Chorlton v Tonge Overseers (1871) LR 7 CP 178
Heydon's Case (1584) 3 Co Rep 7a, 7b
Mathieson v Burton (1971) 124 CLR 1
Maunsell v Olins [1975] AC 373
Re Mayfair Property Co [1898] 2 Ch 28
Smith v Great Western Railway (1877) 3 App Cas 165

1	NISBET DCJ:  By order made 25 May 2000 the following question was listed for trial as a preliminary issue in the action:
"Whether the provisions of Division 2 of Part IV of the Workers' Compensation and Rehabilitation Act 1981 as enacted in the Workers' Compensation and Rehabilitation Amendment Act 1993 ("the Division"); 
(a)	apply to;
(b)	operate to extinguish;
a cause of action vesting in the estate of a deceased worker by section 4 of the Law Reform (Miscellaneous Provisions) Act 1941 arising out of the negligence or other tort of the employer of the deceased, or otherwise."
2		The background to this matter is that on 16 November 1998 the late Mr Colin Charles Campbell issued a writ of summons out of this Court against the defendant claiming damages in respect of injuries he claims he sustained during the course of his employment with the defendant on 19 May 1993 and 24 October 1994.
3		In November 1998 actions in which employees claimed damages against employers for injuries allegedly sustained during the course of their employment could not be instituted except with the leave of this Court (s 93D(4) of the Workers' Compensation and Rehabilitation Act 1981).  It was common ground between the parties that such leave was sought by and granted to the late Mr Colin Charles Campbell.
4		It was also common ground that within a short time of the institution of these proceedings, namely on 28 November 1998, Mr Campbell died and letters of administration were granted to Mr Campbell's widow on 5 August 1999 following which she was substituted as the plaintiff in this action by order made 12 August 1999.
5		Importantly too, it was common ground between the parties that the deceased's death had no causal connection with either of the injuries he sustained during the course of his employment.
6		Section 93D of the Workers' Compensation and Rehabilitation Act 1981 was, along with s 93E and s 93F, repealed and other markedly different provisions, substituted for them by Act No 34 of 1999.  Section 32(7) of Act No 34 of 1999 provides:
"(7)	The amended provisions do not affect the awarding of damages in proceedings –
(a)	commenced before the assent day; or
(b)	for the commencement of which the District Court gave leave under the former provisions before the assent day,
and the former provisions continue to apply in relation to those proceedings."
7		Hence, as the parties acknowledged before me, the former provisions being, relevantly, s 93D of the Workers' Compensation and Rehabilitation Act 1981 before its repeal and substitution with the new provision, applies to this action.  That being said it is as well to set out the former provisions of s 93D as are relevant to the disposition of this matter.  They are as follows:
"93D.	No damages unless death or serious disability
(1)	Damages can only be awarded if the disability results in the death of the worker or it is a serious disability.
(2)	A disability is a serious disability if, and only if –
(a)	the degree of disability would, if assessed as prescribed in subsection (3), be 30% or more; or
(b)	the future pecuniary loss resulting from the disability is of an amount that is at least equal to the prescribed amount."
8		The expression "future pecuniary loss" is defined by s 93A to mean "… pecuniary loss other than that which has already been incurred at the time when the amount of that loss is required to be determined by a court;"
9		It was also agreed by the parties that the deceased had not sustained a disability of 30 per cent or more within the meaning of s 93D(2)(a) of the Act.
10		The defendant argues that no damages could be awarded against the defendant because, immediately upon the death of the deceased, there could be no future pecuniary loss where the death was causally independent of any negligence of the defendant.  In the defendant's submission there were numerous examples of plaintiff's actions failing where, not being able to pass the 30 per cent degree of disability threshold pursuant to s 93D(2)(a), claims had been pursued on the basis that those plaintiffs could establish a future pecuniary loss of an amount at least equal to the prescribed amount and, at their trial proving significant past economic loss and establishing a right to significant awards of general damages, they could not establish a future pecuniary loss of an amount at least equal to the prescribed amount.
11		A worked example better illustrates the defendant's submission.  In November 1998 it was agreed before me that the prescribed amount was in the order of $120,000.  A plaintiff could establish that he or she was injured in consequence of his or her employer's negligence and then proceed to prove special damages by way of past medical and hospital expenses and the like of say $60,000, past loss of earnings of say $60,000 and demonstrate a need for an award of general damages of say $60,000 but prove only an entitlement to an award for future pecuniary loss of, say, $95,000.  In that circumstance that plaintiff's entire claim would necessarily fail.
12		The defendant submits that the only difference between a plaintiff in the position of being able to prosecute a claim through to judgment and failing to establish a future pecuniary loss equal to the prescribed amount, and that of a deceased plaintiff is that the former had the prospect of being able to establish on the evidence to be led before the court a future pecuniary loss equal to or greater than the prescribed amount whereas it is impossible for a deceased plaintiff to establish any future pecuniary loss.
13		The plaintiff argues that Division 2 of Part IV of the Workers' Compensation and Rehabilitation Act 1981 is ambiguous as to whether it applies to the estate of a deceased worker in circumstances where the estate holds a claim against the deceased worker's employer arising out of the negligence or other tort of that employer and that having regard to such ambiguity the legislation is to be interpreted so as not to include the plaintiff within its operation because to do so in such a way as to extinguish the plaintiff's claim would constitute an application of the legislation far beyond the mischief that the legislature was seeking to suppress through its enactment, would create a clear injustice and would create a clear absurdity.
14		The nub of the plaintiff's argument was that s 4 of the Law Reform (Miscellaneous Provisions) Act 1941 was enacted to enable the survival of a personal cause of action past death, the benefit of the cause surviving for the estate of the deceased plaintiff such that after the passing of that Act into law, it was no longer cheaper to kill somebody than to maim them, which was the mischief that Act sought to remedy.  The plaintiff says that if the estate's cause of action is in effect extinguished in consequence of the effect of s 93D(2)(b) then this works a return to the position before the enactment of the Law Reform (Miscellaneous Provisions) Act 1941.  This, the plaintiff submits could not possibly have been within the contemplation of the legislature.
15		The plaintiff then further argued as follows:
1.	By reason of the principle generalia specialibus non derogant where the legislature has given its attention to a specific subject and made provision for it there is a presumption that a subsequent general enactment is not intended to interfere with the special provision unless it manifests that intention with clarity, citing Bank Officials' Association (South Australian Branch) v Savings Bank of South Australia (1923) 32 CLR 276.
2.	Section 4 of the Law Reform (Miscellaneous Provisions) Act 1941 is an example of the legislature having given its attention to a specific subject and made provision for it, that is to say, the abolition of the common law rule that a personal action dies with the person.
3.	The enactment of Division 2 of Part IV of the Workers' Compensation and Rehabilitation Act 1981 inserted into that Act by Act No 48 of 1993 is an example of a general legislative provision by which the legislature intended to streamline and improve the workers' compensation system as a whole.
4.	There is no evidence in the Division that the legislature turned its mind to the specific problem created where a worker dies of a causally independent event after having obtained leave to bring an action for damages.
5.	This being the case, the provisions and the intent of s 4 of the Law Reform (Miscellaneous Provisions) Act 1941 should be given effect such as to preserve the plaintiff's cause of action.
16		The problem with this argument I think is that it does not sufficiently recognise the distinction between a cause of action and a remedy.  The deceased having been granted leave to institute proceedings for damages pursuant to the provision of s 93D(4) of the Workers' Compensation and Rehabilitation Act 1981, having instituted those proceedings but dying before their completion, the cause of action which, but for the provisions of s 4 of the Law Reform (Miscellaneous Provisions) Act 1941 would have died with him, was preserved by that provision.  Now whilst this point wasn't addressed by the plaintiff, it is of course trite to say that a cause of action for damages for negligence is not perfected unless it can be shown that there is damage.  (See for example "The Gist of Negligence" 104 LQR 213,389.)  Here the deceased could, let me assume, prove damage and so the cause of action is preserved for the benefit of his estate.  The difficulty is that had the deceased survived and proven damage but failed to establish a pecuniary loss at least equal to the prescribed amount, no court could have awarded him damages even though that court may have found that he had proved a claim in negligence.  The same applies to the estate's claim.  The estate may very well be able to prove in this Court that the deceased had a cause of action in damages for negligence and had indeed sustained damage thereby perfecting the cause of action in the tort of negligence, but unless the estate can prove that the deceased had a future pecuniary loss resulting from the disability sustained by him by reason of his employer's negligence of an amount at least equal to the prescribed amount, then this Court cannot award any damages.
17		Obviously it is impossible for the estate to establish a claim for future pecuniary loss on behalf of the deceased.  Because the estate's claim is for relief by way of damages and damages alone, it follows that the court will be quite unable to grant the plaintiff any relief thereby rendering these proceedings nugatory.
18		[It would be wrong however to say that the estate has no cause of action and therefore the claim should be struck out.  It is better put on the basis that the court being unable to grant the plaintiff any relief, the action should be permanently stayed.]
19		Having come to this conclusion the answer to the question standing for trial as a preliminary issue is as follows:
The provisions of Division 2 of Part IV of the Workers' Compensation and Rehabilitation Act 1981 apply to a cause of action arising out of the negligence or other tort of the employer of the deceased vesting in the estate of a deceased worker by s 4 of the Law Reform (Miscellaneous Provisions) Act 1941 such as to preclude this Court awarding damages to the estate, but the provisions of such Division do not operate to extinguish that cause of action.