Section 93C of the Workers' Compensation and Rehabilitation Act 1981 (WA) does not prohibit the institution or prosecution of an action for damages by an employee; it only prevents the court from awarding damages. Accordingly, such an action is not an abuse of process merely because the statutory bar to damages currently applies. Where there is a distinct possibility that pending legislation will remove the statutory bar, a stay of proceedings rather than a strike-out is the appropriate course. Statutory defences or provisions rendering proceedings non-maintainable should be specifically pleaded under O 20 r 9(1).
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