Two Bites of the Cherry? – Beasley -v- Fortescue Metals Group Ltd [2020] WADC 118


Karen Beasley was employed by Fortescue Metals Group and sustained neck and arm injuries at work. The first time was on 17 August 2012. Liability was accepted and she was paid weekly compensation until mid-November 2012 when she was cleared to return to work earning her pre-injury wage. The second time was on 30 March 2013. Again liability was accepted and she was paid weekly compensation until late 2014/early 2015 when the prescribed amount was exhausted.

In March 2015 she elected to seek common law damages in the District Court as a result of the March 2013 injury. She lost at trial and judgment was entered for Fortescue. She then brought a WorkCover application for further weekly payments for the August 2012 injury and alternatively, an extension of the prescribed amount for weekly payments for the March 2013 injury under Section 217 Workers’ Compensation and Injury Management Act 1981 (Act). This application was dismissed at arbitration. In doing so the arbitrator identified two issues in the application which were appropriate to determine on the papers by way of preliminary issues:

  • Whether the District Court decision contained an issue estoppel to the effect that she no longer suffered any compensable incapacity resulting from the August 2012 injury, as argued by Fortescue. The arbitrator held that it did, the issue estoppel then precluding the re-determination of that issue at arbitration.
  • Whether the application for an extension of the prescribed amount for weekly payments for the March 2013 injury was precluded by her common law election, again as argued by Fortescue, pursuant to Section 93P(2) of the Act. The arbitrator again held that it did, noting that that Section rendered incompetent a subsequent application pursuant to Section 217.

She appealed those decisions, asserting errors of law by the arbitrator, but before the hearing of the appeal elected to drop the issue estoppel argument. That only left the Section 93P(2) argument.

Section 93P(2) provides that if a worker elects to retain the right to seek damages at a WPI under 25%, weekly compensation is subject to a step down, and ceases after 6 months and no other compensation is payable in respect to the injury after the election.

In considering that ground of appeal, His Honour Judge Gething noted the application of Sections 91 and 92 of the Act. Section 91 set out the Court’s duties where an action for damages was unsuccessful but workers’ compensation was payable (the Court in which the action is tried is to assess the compensation payable or refer the assessment for determination by an arbitrator, and is to deduct from that compensation the costs caused by the plaintiff bringing the action, instead of taking proceedings under the Act, and enter judgment accordingly). Section 92 contained a prohibition against “double-dipping”, providing that both damages and workers’ compensation are not recoverable by an injured worker in respect to the same injury.

He held the combined effect of Sections 91 and 92 was to necessarily and by implication prohibit an injured worker from circumventing the Act by commencing or continuing proceedings compensation for the same injury. In other words, the only way Beasley could have claimed further compensation was by invoking Section 91 at the end of the District Court action. He held that the arbitrator was correct to dismiss the application in so far as it sought an order pursuant to Section 217, but not under Section 93P(2). There was though no error of law, so that aspect of Beasley’s appeal was dismissed.

This case note is headed “Two bites of the cherry” but might equally have been headed “Look before you leap”, as Beasley’s failure to invoke Section 91 at the end of the trial may have been her undoing.

For any further information, please contact Insurance Partner, Stephen Williams.

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