By Ella Morison, Law Graduate

The Supreme Court of Western Australia has handed down a decision with wide reaching ramifications for hundreds of other claimants in Western Australia who have elected to bring common law proceedings against their employer in respect of personal injuries.

Donald Neville, the appellant, suffered a lower back and right hip injury while working for Choice One Pty Ltd and he received workers’ compensation, including weekly payments and medical expenses, under the Workers’ Compensation and Injury Management Act 1981 (WA) (“1981 Act”).

On 28 March 2019, Mr Neville’s solicitor lodged common law election papers with the Director of WorkCover WA comprising:

• A certificate by Dr Evan Jenkins (Approved Medical Specialist) stating that Mr Neville’s condition had not stabilized.
• A Special Evaluation by Dr Jenkins assessing Mr Neville’s permanent whole of person impairment (WPI) at 18% (satisfying the minimum threshold of 15% WPI for a common law claim in Western Australia).
• A Form 34, purporting to elect to retain the right to seek common law damages under section 93K of the Act.

The Director recorded Mr Neville’s WPI on 29 March 2019 and registered the election.

In the proceedings, after undergoing surgery, Mr Neville sought further compensation under the Act for medical expenses incurred after 29 March 2019. However, an Arbitrator of WorkCover WA dismissed the claim, citing section 93P(2)(c) of the 1981 Act which precluded an entitlement to medical expenses compensation once a common law election had been registered.

Section 93P(2)(c) relevantly provided that, if a worker elected under section 93K of the Act to retain the right to seek damages, no other compensation was payable in respect of the injury for expenses incurred after the election registration day.

Appeal to the District Court

On appeal to the District Court, it was contended on behalf of Mr Neville that the Arbitrator had erred in concluding that section 93P of the Act precluded Mr Neville’s claim as there had not been a valid election made.

On 18 July 2023, the primary judge dismissed Mr Neville’s appeal. The judge essentially ruled that neither a worker nor an employer could challenge the validity of an election recorded by the Director if it appeared valid on its face. Consequently, the judge deemed it unnecessary to assess the merits of Mr Neville’s argument that his election was not valid.

Appeal to the Supreme Court, Court of Appeal

The core issue was whether Mr Neville’s election to retain the right to seek damages under section 93K of the 1981 Act was valid. The Court of Appeal found that it was not. Section 93L(2)(b) stipulated that a worker may only make an election once their WPI has been assessed to be at least 15% and the Director has recorded that assessment. In Mr Neville’s case, while his WPI had been assessed at 18%, the Director had not yet recorded that assessment when Mr Neville purported to make his election on 28 March 2019. The Director did not record the assessment until the following day, on 29 March 2019. As a result, Mr Neville’s election was made prematurely and, therefore, did not satisfy the requirements of the Act. The election was invalid because it was lodged before the essential statutory condition – the recording of the WPI assessment – had been fulfilled.

As a result, both the Arbitrator and the primary judge were held to have erred by concluding that Mr Neville’s election precluded his claim for medical expenses incurred after 29 March 2019 without addressing the fundamental question of whether a valid election had been made. By failing to examine the validity of the election, both the Arbitrator and the District Court judge overlooked a critical statutory requirement, thereby misapplying the law. This error resulted in the dismissal of Mr Neville’s claim without a proper legal basis.

The Court allowed the appeal, set aside the District Court judge’s orders, and remitted the matter to a different Arbitrator at WorkCover WA for reconsideration.

Key points from the judgment emphasize that the timing of the election is crucial; the registration of an election does not retroactively validate an earlier invalid election. Section 93L(2)(b) of the 1981 Act was designed to ensure that workers have sufficient information, such as their impairment assessment, before making an irreversible election that terminated their compensation rights.

Impact on Other Claims

The Neville decision is believed to invalidate the election in hundreds of actions filed by plaintiffs that are currently being litigated in the District Court of Western Australia. An invalid election would disqualify the plaintiff from being awarded any damages due to this technicality, regardless of the merits or quantum of their claim, and expose them to costs orders in favour of the defendant.

Hundreds of claims are affected by virtue of the e-lodgement process implemented by WorkCover WA which required uploading of the election form at the same time as submitting the WPI evidence.

WorkCover WA has released a statement on its website to inform stakeholders it is aware of stakeholder concerns about the implications of the decision and “as a priority” is looking at “any potential legislative amendments that may be required” to retrospectively address the issue.

Are Elections under Workers Compensation & Injury Management Act 2023 affected?

No.

Section 421(1) of the 2023 Act, which is the new equivalent provision to section 93L, no longer requires the recording of the WPI to occur as a condition precedent to the election. A worker’s right to pursue common law damages is now simply conditional upon satisfaction of both requirements –

• The worker must have had their WPI assessment recorded by the Director; and
• The worker must have elected, have had their election registered, and been notified in writing by the Director of such.