Appellant v Respondent

Supreme Court of Victoria|2010-07-07|Before: CAVANOUGH J

[2010] VSC 307 [Revision No 1]

Skewes v American International Assurance Company (Aust) Ltd (Victorian Civil and Administrative Tribunal, Reference C8329/2008, Senior Member N Megay, 10 June 2009)

ADMINISTRATIVE LAW - Appeal from Victorian Civil and Administrative Tribunal - Jurisdiction of Tribunal under Fair Trading Act 1999 - Whether a disability claim under an employer's superannuation insurance policy is excluded as a "dispute or claim related to a personal injury" - Held, jurisdiction not excluded - Fair Trading Act 1999 ss 3, 107, 108, 159 -

1 This is an appeal under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 ("the VCAT Act"). The main issue is whether the Tribunal has jurisdiction under ss 107 and 108 of the Fair Trading Act 1999 ("the Act") to entertain the principal part of an application which the respondent, Mr Skewes, has brought in the Civil Claims List of the Tribunal against the appellant ("AIA"). Mr Skewes' principal claim in the Tribunal is that AIA wrongly ceased paying disability benefits to him under a salary continuance insurance policy issued by AIA to Bond University, a former employer of Mr Skewes. He describes his disability as "stress/anxiety-depression". He claims $191,629 under the policy. Mr Skewes' position is that the matter falls within the definition of "consumer and trader dispute" in s 107 of the Act and that the Tribunal has jurisdiction accordingly. The position of AIA is that the matter amounts to a "dispute or claim related to a personal injury" within the meaning of s 107(2) of the Act and that it is excluded from the definition of "consumer and trader dispute" for that reason.

2 The Tribunal held that the matter was covered by the definition of "consumer and trader dispute"; that it did not amount to a "dispute or claim related to a personal injury"; and that it fell within the Tribunal's jurisdiction accordingly. On that footing, the Tribunal made certain procedural orders designed to progress the hearing of the case.

3 Having obtained leave to appeal from those orders, AIA submits that the reasoning of the Tribunal involved misinterpretation of s 107(2) in certain respects. As I will indicate, I agree in substance with AIA's submissions to that extent. However, I consider that the Tribunal's ultimate conclusion - that it had jurisdiction under ss 107 and 108 in relation to the principal part of Mr Skewes' claim - was nevertheless correct, because on the proper interpretation of s 107 the matter still does not amount to a "dispute or claim related to a personal injury". On that basis, the appeal should be dismissed.

The relevant provisions of the Fair Trading Act 1999

4 Sections 107 and 108 fall within Part 9 of the Act, headed "Functions of Tribunal". Part 9 is one of two main sources of the Tribunal's civil jurisdiction under the Act.[1] Section 107 provides:

"107 What is a consumer and trader dispute?

(1) In this Part a consumer and trader dispute is a dispute or claim arising between a purchaser or possible purchaser of goods or services and a supplier or possible supplier of goods or services in relation to a supply or possible supply of goods or services.

(2) For the purposes of subsection (1), a dispute or claim includes any dispute or claim in negligence, nuisance or trespass that relates to the supply or possible supply of goods or services but (except as provided in subsection (3)) does not include a dispute or claim related to a personal injury.

(3) For the purposes of subsection (1), a dispute or claim includes a claim related to personal injury if -

(a) the claim is for an amount not exceeding $10,000; and

(b) the claim relates to a supply or possible supply of goods or services; and

(c) the supply or possible supply of goods or services is the subject of a related consumer and trader dispute."

"108 Settlement of consumer and trader disputes or small claims

(1) The Tribunal may hear and determine a consumer and trader dispute."

5 Several of the terms contained in s 107 are themselves defined in s 3 of the Act. However, there is no controversy in this case about the meaning or effect of any of those defined terms. In particular, it was common ground before the Tribunal that, for the purposes of ss 107 and 108, the rights conferred under a contract of insurance are "services" (as defined).[2] The Tribunal itself so held.[3] The proposition remains common ground. I will assume its correctness, without deciding the matter.

6 The second main source of the Tribunal's civil jurisdiction under the Act is s 159, which falls within Part 11 (Enforcement and Remedies). Mr Skewes does not submit that s 159 itself empowers the Tribunal to hear his principal claim, but he does rely on it, in part, for the purposes of interpreting ss 107 and 108(1). It is desirable to set it out in full:

"159 Actions for damages

(1) A person who suffers loss, injury or damage because of a contravention of a provision of this Act may recover the amount of the loss or damage or damages in respect of the injury by proceeding against any person who contravened the provision or was involved in the contravention.

(1A) Except in accordance with section 107(3), a person may not recover in the Tribunal an amount for any personal injury suffered.

(2) A proceeding under this section may be brought before the Tribunal or in any court of competent jurisdiction.

(3) A proceeding under subsection (1) must not be commenced more than 6 years after the date on which the cause of action accrued.

Note

This subsection is subject to Part IIA of the Limitation of Actions Act 1958."

7 Mr Skewes asserts before the Tribunal that when his benefits were discontinued in October 2003 (after being paid for about three years), he actually continued to meet the definition of Total Disability in the policy and that he has continued to meet it at all times since then. The definition is as follows:

"'TOTAL DISABILITY' in respect of any Employee means disablement resulting from Sickness or Injury which occurs while the Employee is insured as a result of which:

(i) the Employee is unable to perform at least one important duty of his/her usual occupation necessary to produce income.

(ii) the Employee remains under the regular care and attendance of, and follows the advice of, a legally qualified medical practitioner (other than himself or herself), in relation to that sickness or injury; and

(iii) the Employee is not engaged in any occupation.

An important duty is defined as involving twenty per cent (20%) or more of the Employee's overall tasks."

8 The "Total Disability Benefit" is payable monthly in arrears if the Employee "suffers Total Disability through Injury or Sickness".[4] The benefit paid "would be based on the Employee's monthly Income accruing from the date of expiration of the Waiting Period".[5] "Income" and "Waiting Period" are defined terms, but it is unnecessary to set them out. The "Amount Insured" is defined as follows:[6]

"'AMOUNT INSURED' in relation to an Employee means that amount certified by the Proposer as the Employee's Amount Insured in the relevant list under general condition 10, subject to the conditions relating to the amount payable in the Policy Schedule."

9 Under clause 10, the proposer (here, Bond University) was required to provide information to the insurer on an annual basis about its employees, including the salary and level of cover required for each employee. The policy provides that the Amount Insured will be paid at the end of each month in which the Employee is entitled to be paid.[7] By virtue of the Policy Schedule, the Monthly Benefit is a maximum of 75% of Income and the Maximum Monthly Benefit is $20,000. Provision is made for escalation at the lesser of 5% and CPI.[8]

"INJURY means injury to the Employee caused by an accident occurring while the Employee is covered under this Policy. If Total Disability commences after thirty (30) days from the date of an accident the Total Disability will be deemed to be caused by a Sickness".

"SICKNESS means sickness or disease suffered by the Employee which manifests itself while the Employee is covered under this Policy".

12 Under the particular policy as issued to Bond University, it seems that the principal significance of the distinction between "Injury" and "Sickness" is that the time within which the employer is required to give notice to the insurer of the commencement of "Total Disability" differs according to whether the cause is "Injury" or "Sickness". That requirement is not the subject of any dispute in this case. It is true that the definition of "Maximum Benefit Period" (contained in the general conditions) provides for the Policy Schedule to make a distinction between "Injury" and "Sickness" in relation to the maximum period for which benefits will be payable, but in the case of the Bond University policy the relevant Policy Schedule makes no such distinction. Only one "Maximum Benefit Period" is specified, namely "To Age 65". Clause 18 ("Concurrent Disability") provides that "[w]here an Employee is totally disabled because of more than one Injury or Sickness, or from both, whether related or not, benefits are payable in respect of only one Injury or Sickness, as the Company shall determine, based on medical evidence".

13 The policy also provides for benefits on "Partial Disability" which is defined as follows:[9]

"'PARTIAL DISABILITY' means immediately following payment of a Total Disability Benefit for at least thirty (30) consecutive days and because of the Injury or Sickness which directly caused the Total Disability, the Employee is:

(i) under the regular care and attendance of a Doctor;

(ii) able to perform one or more duties of his/her occupation but is unable to perform all of the duties of his/her occupation on a full-time basis; and

(iii) earning an Income from his/her occupation or another occupation at a monthly rate of less than 75% of his/her Pre-Disability Income."

14 Proof of Total Disability or Partial Disability must be established by such reports, written declarations or other means as the company may reasonably require.[10]

15 Mr Skewes commenced the proceedings in the Tribunal in October 2008 by completing and filing a standard form entitled "Application to Civil Claims List". He did this himself, without legal representation. By making various entries on the form, Mr Skewes indicated that his claim was made under the Fair Trading Act 1999; that the "value of [his] claim" was $191,629; that he wanted the Tribunal to "decide and order" the following: "Payment of money", "Payment of damages (including exemplary)", "Order to comply with a contract", "Loss, injury or damage because of a contravention of the Fair Trading Act 1999" and "Misleading or deceptive conduct, false representation and unconscionable conduct". He specified 6 June 2000 as the date of the contract and 13 October 2003 as the date of the dispute. As invited by section 11 of the form, he attached an outline of the history of the dispute. It runs to 11 pages. It refers to various medical reports. It includes adverse allegations against AIA concerning its handling of complaints he had made about the stopping of his disability benefits.

16 Mr Skewes remained without legal representation throughout the course of the proceedings in the Tribunal.

17 On 28 January 2009, a Senior Registrar of the Tribunal sent to the parties a document entitled "Notice of Jurisdictional Hearing". It advised that the proceeding would be listed for a preliminary hearing on 26 May 2009; that the purpose of the hearing was to decide whether the Tribunal was able, under the Act, to hear and decide the application in the proceeding; that the Act "limits the ability of the Tribunal to hear and decide disputes or claims about personal injury";[11] that if the Tribunal decided that it was able to hear and determine the application, the further hearing of the application would be scheduled later; and that, if the Tribunal decided the contrary, the application would be dismissed.

18 As far as I can tell, the VCAT Act makes no specific provision for a "jurisdictional hearing". Under s 75 of the VCAT Act, the Tribunal may make an order summarily dismissing or striking out all or any part of a proceeding that, in its opinion, is frivolous, vexatious, misconceived or lacking in substance or that is otherwise an abuse of process. Such an order can be made on the application of a party or on the Tribunal's own initiative. Sub-section 98(3) of the VCAT Act provides that, subject to that Act and the regulations and rules made under it, the Tribunal may regulate its own procedure. In the present case, it seems that the Tribunal itself initially identified a possible jurisdictional problem or problems and that AIA then took up the matter and sought to have the entire proceeding dismissed on jurisdictional grounds. [12]

19 The proceeding duly came before Senior Member Megay on 25 May 2009. Counsel for AIA handed up and spoke to written submissions dated that day. AIA submitted that Mr Skewes' application and attached history suggested that he was putting forward four separate claims: first, that at all relevant times he had met the definition of "Total Disability" under the policy and was entitled to payment accordingly; second, that AIA had breached its obligation of good faith and fair dealing in deciding not to continue paying; third, that AIA had failed to respond in a timely fashion to his complaints about AIA's stance; and, fourth, that AIA had breached the Act by engaging in conduct that was misleading and deceptive (by causing him to believe that AIA's internal Dispute Resolution Committee would deal with his complaint, which it did not) and unconscionable (by using unfair tactics and misrepresentation aimed at enticing him to enter into an agreement with the Finance Industry Complaints Service ("FICS") that any information provided to FICS in relation to his complaint would be provided on a without prejudice basis).

20 The Tribunal apparently regarded this as an appropriate classification of Mr Skewes' claims, but it effectively put to one side the claims described as Mr Skewes' second, third and fourth claims, on the basis that the facts relating to those claims could not be sufficiently investigated or determined at that stage. The parties are now agreed that that was an appropriate course.[13]

21 By contrast, the Tribunal considered itself to be in a position to make a jurisdictional determination in relation to the claim described by AIA as Mr Skewes' first claim, which the Tribunal appropriately referred to as the "major thrust"[14] of Mr Skewes' application to the Tribunal.

22 The Tribunal reasoned as follows in relation to the first claim. Mr Skewes was accepted for cover under the policy in June 2000. The policy covers injury, as defined, and also sickness, as defined. Subsequently, Mr Skewes fell ill. The nature of his ensuing disability is described by him as "stress/anxiety-depression". Benefits were paid until 13 October 2003 and then ceased. Mr Skewes believes that the cessation was based on a medical examination on 17 June 2003 as a result of which the insurer formed the opinion that he was not prevented from returning to work by virtue of his psychiatric disorder. The insurer submits that this is a claim "related to a personal injury" within the meaning of s 107(2); and that (for the purposes of s 107(3)) it is for an amount exceeding $10,000; and that, therefore, it is beyond jurisdiction. Mr Skewes simply says: "I had a sickness and they failed to pay". The insurer says that Mr Skewes needs to establish a right under the policy, which in turn requires him to establish his anxiety; and that it is difficult to establish that right without reference to his personal injury. The insurer relies on Wurzel v Francis Ryan & Ors,[15] a decision of Judge Bowman in his capacity as Vice-President of the Tribunal. However, that decision is distinguishable.

23 The remainder of the Tribunal's reasons should be set out verbatim.

... [Wurzel] was a case involving an applicant who was injured when paragliding and who sought to bring an action alleging negligence and/or breach or contract against holiday organizers. The focus of the discussion concentrated on the meaning of the words "related to" as those words appear in s.107(2). His Honour accepted that the argument put by counsel in that case was correct. Counsel's argument was framed as follows:

...the words "related to" have a broad meaning and the present case falls within the exclusion [of 107(2)]. ... it is the personal injuries suffered by the applicant that lie at the heart of the claim. It may well be that such injuries represent the measuring stick for the quantum of damages, but a "trial within a trial" would be necessary in order to determine the quantum of damages, and that inner trial would of necessity involve witnesses and evidence of the type usually found in a personal injuries claim."

Whilst the logic of that seems irrefutable at first glance, a close inspection reveals substantial differences between that case and that of Mr Skewes. The first thing to notice is that the Wurzel case was decided before the introduction of section 32N of the Fair Trading Act, the section that now deals with the limitation of liability in relation to the supply of recreational services. That section defines, for the purposes of that section alone, terms such as "disease", "injury" and "personal injury" and provides expanded meanings. The enlargement of the definitions is, as I said, restricted only to that section. The corollary of that is that the term "personal injury" appearing in s 107(2) should be given its ordinary or common meaning, not some expanded definition. Whilst his Honour agreed with the proposition that the phrase "related to" was not to be read down, it was those words on which he concentrated. And the reason for this is obvious, Ms Wurzel had sustained personal injury in a paragliding accident. There was simply no argument that there had been a personal injury.
That is not the case here. Other than in s 32N, the term "personal injury" is not defined elsewhere in the Act. The general meaning is simply "injury to a person" and whilst it is true that in many cases of personal injury (as that term is used in the litigation sense), psychiatric illness is often a sequelae of injury, it is not the case here. Mr Skewes, as far as this Tribunal is aware, has not been in any sort of accident and has not suffered any injury. He has had an illness, an event clearly covered by his policy. Indeed the wording of the policy given weight to such a proposition. Clause Q of the policy defines "injury" as meaning "injury to the Employee caused by an accident occurring while the Employee is covered under this Policy"; clause R defines "sickness" to mean "sickness or disease suffered by the Employee which manifests itself while the Employee is covered under this Policy."
It might seem an odd result that dealing with a personal injury under a policy is beyond the jurisdiction of the Tribunal, whereas something related to an illness covered by the same policy falls within it but that seems to be the inevitable result. It is true that in a "trial within a trial", regard will be had to the reports of various medical practitioners about whether or not Mr Skewes' illness is such as to render him totally or partially disabled (as that term is defined) but that is not a matter excluded by this Tribunal for want of jurisdiction.
It might well be arguable that parts of Mr Skewes' claim will not succeed for a variety of reasons but the major thrust is one of a breach of contract pursuant to the contract of insurance. Parts of the claim as helpfully articulated by Ms Stynes (Mr Skewes being unrepresented) and which relate to the foundation fact of personal injury can be dealt with easily but other parts are less easy to discern. What is clear is that there is a divergence of facts and in relation to the third and fourth possible limbs of complaint, it is difficult to ascertain what damage has been suffered and equally difficult to ascertain just how section 159 might be invoked.
Having decided that the Tribunal has jurisdiction to deal with the major part of Mr Skewes' complaint, the Tribunal declines to strike out his application. In so doing the Tribunal is acutely mindful of the applicant's unrepresented state and of the potentially divergent views of the facts. With that in mind I propose to list the matter for compulsory conference and to make some directions about the filing of documents.

24 By its notice of appeal, AIA alleges that the following questions of law arise:

Whether on the proper construction of clause 107(2) of the Fair Trading Act 1999 "personal injury" includes a psychiatric illness.
Whether on the proper construction of clause 107(2) of the Fair Trading Act 1999 "personal injury" includes a psychiatric illness that is not the result of an accident or sequelae of physical injury.

The Tribunal erred by misinterpreting section 107(2)of the Fair Trading Act 1999 and finding that the applicant's psychiatric illness was not a personal injury for the purpose of that section. The Tribunal ought to have found that the applicants' psychiatric illness was a personal injury.
The Tribunal erred by misinterpreting section 107(2) of the Fair Trading Act 1999 and finding that in the absence of any accident or physical injury the applicant's psychiatric illness was not a personal injury for the purpose of that section. The Tribunal ought to have found that the applicant's psychiatric illness was a personal injury.

26 The notice of appeal sought an order that the Tribunal's orders of 10 June 2009 be set aside and also an order that the whole of Mr Skewes' application be "struck out" (sic) for want of jurisdiction. However, as mentioned above, AIA has effectively abandoned the challenge to the Tribunal's decision insofar as it relates to anything other than the first claim.

27 There is error of law in the Tribunal's interpretation of s 107(2) of the Act in at least one respect. I accept AIA's submission that paragraph 14 of the Tribunal's reasons indicates that the Tribunal was of the view that the phrase "personal injury" in s 107(2) does not include a psychiatric illness that is not the result of an accident or a consequence of physical injury. I further accept that the Tribunal's view in that regard is incorrect.

28 The Tribunal was wrong to take into account in any way the extended definitions of "injury" and "personal injury" in s 32N (4) of the Act, because s 32N(5) expressly provides that the definition of "injury" in s 32N(4) does not, by implication, affect the meaning of the expression "injury" when used in a provision of the Act other than s 32N.

29 Without referring to any dictionary or any authority, the Tribunal stated that the "general meaning" of "personal injury" is simply "injury to a person". To the Tribunal, that expression in turn plainly meant physical (or traumatic or external) injury, because the Tribunal immediately proceeded to contrast "injury" with "illness" or "sickness". However, in the context of legal claims and litigation, these concepts overlap to a very large extent. Several times over the last 15 years or so, numerous judges of the High Court have referred with approval[16] to the following passage from the judgment of Latham CJ in Hume Steel Ltd v Peart[17] (a workers' compensation case):

There is a distinction, according to the common use of language, between getting hurt and becoming sick. The former would be described as an injury and the latter would generally not be so described. But it requires little analysis to show that an injury may be either external or internal. It appears to me to be difficult to draw any satisfactory distinction between the breaking of a limb and the breaking of an artery or of the lining of an artery. One is as much an injury to the body, that is, something which involves a harmful effect on the body, as the other. Each is a disturbance of the normal physiological state which may produce physical incapacity and suffering or death. Accordingly, in my opinion the detachment of a piece of the lining of the artery in the present case should be held to be an injury. The death of the worker resulted from that injury.

30 In FCT v Scully,[18] in relation to a provision of the Income Tax Assessment Act 1936 which exempted "consideration of a capital nature for, or in respect of, personal injury to a taxpayer", the plurality saw no reason to think that "personal injury" in that provision excluded disease, illness or infirmity.

31 On the Tribunal's interpretation of "personal injury" (putting aside any complications arising from the reference to contracts of service in the definition of "services") the Tribunal could have unlimited jurisdiction under ss 107 and 108 to entertain a claim of the kind considered by the High Court in Koehler v Cerebos (Aust) Ltd,[19] namely a claim by an employee against her employer for damages for the contraction of a recognised psychiatric illness as a result of being subjected to workplace stress and pressure. No accident or physical injury was involved, but the plurality used the expression "psychiatric injury" in describing the alleged harm suffered by the plaintiff.[20] Indeed, Callinan J referred to her claim as a "claim for damages for personal injury".[21]

32 On the other hand, I note that in a recent decision of the Commonwealth Administrative Appeals Tribunal, Re Von Stieglitz and Comcare,[22] in which many authorities were considered, it was held that a psychological condition known as adjustment disorder fell within the meaning of "disease", not "mental injury", for the purposes of the definition of "injury" in the Commonwealth workers' compensation legislation. The AAT held that, for the purposes of that definition, a "mental injury" requires some form of sudden or identifiable physiological change, such as would be involved in a damaging epileptic seizure. That result may or may not be difficult to reconcile with Koehler, but in any event Von Steiglitz throws into sharp relief the ruling of the Tribunal in the present case, under which even a damaging epileptic seizure would not amount to a "personal injury".[23]

33 Of course, to the extent that the Tribunal considered that the distinction between "injury" and "sickness" that happened to be drawn in the relevant policy gave weight to its interpretation of s 107, it was plainly in error.

34 One other aspect of the Tribunal's reasons should be noticed. From time to time the Tribunal appeared to indicate that it had made findings with respect to Mr Skewes' actual medical condition as distinct from findings about the nature of the assertions about his medical condition contained in his application to the Tribunal. This is puzzling. There is little or nothing to indicate that the Tribunal received formal oral or written evidence at the jurisdictional hearing. There was no statement of agreed facts concerning Mr Skewes' actual medical condition or concerning any cause(s) of it. Needless to say, the parties' respective medical reports conflicted in certain respects.

35 AIA's grounds of appeal as expressed in the notice of appeal (as distinct from the stated questions of law) proceed on the assumption that the Tribunal did make findings about Mr Skewes' actual medical condition. However, in all the circumstances, I consider that I should not read the Tribunal's reasons as containing any such findings.

36 Where a final, substantive decision of the Tribunal is found to have been affected by a vitiating error of law, the usual course is to order that the decision be set aside and the matter be remitted to the Tribunal for further hearing and determination in accordance with law.

37 However, AIA does not call for such orders in this case. Rather, it asks for the Court itself to hold that the Tribunal has no jurisdiction to entertain Mr Skewes' principal claim.

38 Mr Skewes, on the other hand, asks the Court to uphold the Tribunal's ultimate conclusion but, principally, on different grounds.[24] In the alternative, he formally submits that the Tribunal's reasoning was not erroneous in law, but he offers no further defence of it. As I have already indicated, I would not be prepared to uphold that alternative submission.

39 Mr Skewes only obtained legal representation after I strongly suggested he do so when the case first came before me. AIA did not object to my hearing and ruling on Mr Skewes' new arguments. The question of the Tribunal's jurisdiction in cases like the present is essentially a question of law, and an important one. In the circumstances, I consider that I should consider it afresh, albeit by reference only to Mr Skewes' allegations in the Tribunal, as distinct from any findings the Tribunal may have made as to his actual medical condition.[25]

The matter is not "a dispute or claim related to a personal injury"

40 In essence, AIA submits that "personal injury" is a broad term; that "related to" is also a broad term; and that, accordingly, the expression "dispute or claim related to a personal injury" in s 107(2) covers a very broad area. AIA acknowledges that the term "related to" is not limitless,[26] but submits that if there is a nexus of substance, as distinct from an incidental relationship, between the personal injury and the consumer and trader dispute the claim would be excluded from the Tribunal's jurisdiction (assuming that the claim is for an amount exceeding $10,000).

41 Mr Skewes submits that the expression in question relates only to disputes or claims where "the wrongful act causes damage to a person's body. That is, s 107(2) of the Act removes the Tribunal's jurisdiction over traditional personal injury claims, whether framed in negligence, or in contract, or otherwise".[27]

42 Both parties have resorted to dictionary definitions of the individual words in question, especially "injury". AIA submits that, in context, the word "injury" is used in the sense of any bodily (ie physical or mental) injury. Mr Skewes submits that the word is used in the sense of "wrongful action or treatment; violation of another's rights". In this particular regard, I favour the submission of AIA.

43 However, I do not think it is particularly helpful to read the individual words or terms in the expression in isolation from each other or in isolation from s 107 as a whole or in isolation from the other provisions of the Act, especially s 159. Indeed, I consider that there is sufficient ambiguity in the provision in question to justify recourse to certain other conventional aids to statutory interpretation.

44 It seems to me that the present issue raises a question of "lawyer's law" or something close to it.[28] Lawyers are very familiar with distinctions between "personal injury" matters and other matters. The expression "personal injury claims" is often used amongst lawyers. It is true that s 107(2) does not actually use the term "personal injury matter" or the term "personal injury claim", but it is easy to accept that Parliament was intending to make reference to this general field of legal learning.[29]

45 Indeed, the relevant provisions have been referred to on the basis of just such an understanding in documents relevant for the purpose of statutory interpretation. As Mr Skewes points out, in 2000 the Minister for Consumer Affairs directed a Panel to review the Act as it then stood; and in 2002 the Panel issued a report entitled "Fair Trading Act Reference Panel Recommendations". Relevantly, the report contains the following passages:

"Issue 23 Should VCAT deal with personal injury claims arising under 'fair trading disputes', and, if so, to what monetary limit, if any?

The panel notes that a 'small claim' under the Small Claims Act is a claim by a consumer against a trader for up to $10,000 that arises out of a contract for the supply of goods or the provision of services, which would not preclude personal injury claims; and that section 159 of the Act, together with section 158(3) enables VCAT to award compensation for a breach of the Act, which, again, would not preclude personal injury claims.

The Panel also notes that the County Court is the primary forum for personal injuries claims, but that the Magistrates' Court's civil jurisdiction allows personal injuries claims up to $40,000 (or higher by agreement of the parties).

Finally, the Panel notes that VCAT's power, under its 'fair trading dispute' jurisdiction, to deal with consumer civil disputes is unlimited, making it broader than the power of the Magistrates' Court or the County Court to deal with such disputes, although it notes that only about 7% of VCAT's 'fair trading disputes' are for amounts over $10,000.

The panel believes that given the pre-eminence given to VCAT to deal with consumer disputes, it should have clear power to deal with personal injury disputes that are part of a 'fair trading dispute'.

The Panel sees the options as:

removing the section 107(2) exclusion of personal injury claims form VCAT's 'fair trading dispute' jurisdiction;
removing section 107(2) exclusion of personal injury claims from VCAT's 'fair trading dispute' jurisdiction but limiting the claims to $10,000 or $40,000;
clarifying that VCAT's jurisdiction under any other provision of the Act to hear personal injury claims is limited to $10,000 or $40,000.

The Panel believes that given that VCAT probably already has personal injury jurisdiction under other provisions of the Act and under the Small Claims Act, there is no reason why its 'fair trading dispute' jurisdiction should exclude personal injuries claims.

However, the Panel believes that VCAT should only deal with personal injuries that are attendant upon a fair trading dispute, and that it should not hear such claims separately. Further, it believes that if section 107(2) of the Act is amended to clarify that VCAT can hear personal injuries claims, training in this area should be provided for VCAT members.

The Panel also believes that in keeping with the primary position of the County Court in personal injuries claims, VCAT's personal injury jurisdiction should be limited to $10,000, at least on a trial basis.

Recommendation 42

Amend that Act (and the Small Claims Act unless it is repealed) to enable VCAT to hear personal injuries claims of $10,000 or less, which are attendant upon a 'fair trading dispute' (or a 'small claim'); and clarify that section 159 of the Act, together with section 158(3), do not import a personal injuries jurisdiction to VCAT."

This recommendation was substantially accepted and is reflected in amendments made to the Act in 2003 by the Fair Trading (Amendment) Act 2003, including by the insertion of s 159(1A) (see above).

46 Further, in the Second Reading Speech for the amending bill it was relevantly stated that the bill would expand the Tribunal's powers by enabling it to deal with "small injuries claims attendant on a consumer and trader dispute".[30] The Explanatory Memorandum relevantly stated:

"Clause 52 amends section 107 of the Act to allow the Tribunal to resolve personal injury claims under $10 000 that are attendant on a consumer and trader dispute.

...

Clause 67 amends section 159 of the Act to clarify that the Tribunal's only personal injuries jurisdiction under the Act is under section 107 of the Act."

47 I note that the decision of AIA complained of by Mr Skewes came into effect on 13 October 2003 and has been maintained and given continuing effect ever since. The 2003 amendments relevantly came into force on 9 October 2003. In these circumstances, even though the words "does not include a dispute or claim related to a personal injury" were contained in s 107(2) prior to the amendments of 2003, it seems to me that in interpreting and applying them in this case it is legitimate to have regard to the amending provisions, to the terms and effect of s 107 as amended and, indeed, to the abovementioned extrinsic materials relating to the amending provisions.[31] AIA did not suggest to the contrary.

48 The amending Act inserted the words in brackets in s 107(2) and added s 107(3). Consistently with Mr Skewes' proposition that the exclusion is intended to be limited to traditional personal injuries cases, s 107(3) uses the expression "related to personal injury", ie without the indefinite article "a", thus diminishing the force of any indication to the contrary that might otherwise be gained from the use of the indefinite article in the corresponding place in s 107(2). Further, although the expression in question in s 107(2) includes a reference to a "dispute" related to personal injury as well as to a "claim" so related, the real focus is on the notion of a "claim". Thus, in s 107(3), the reference to a "dispute" is omitted in the corresponding part of the sub-section. Sub-section 107(3) directs attention to a "claim" related to personal injury where the "claim" is for an amount not exceeding $10,000.

49 Similarly, s 159(1) refers to a person who suffers loss, injury or damage by reason of a contravention of the Act and provides, among other things, that the person may recover "damages" in respect of the "injury". Sub-section 159(1A) sets up a link with s 107; and provides that, except in accordance with s 107(3), a person may not recover in the Tribunal an amount for "any personal injury suffered".

50 Sub-section 159(3) sets up a limitation period of six years for claims under s 159. The note to the sub-section points out that it is subject to Part IIA of the Limitation of Actions Act 1958. This in turn reminds one that special provision for common law personal injuries cases has long been made in limitations statutes, both in Victoria and in many other parts of the common law world.[32] The jurisprudence relating to such provisions is extensive. The particular words of the relevant statute must always be given primacy in interpretation. But it can be said that, generally speaking, the provisions are interpreted to apply only to cases where there is a claim that wrongful conduct has caused the "personal injury" complained of[33] or where there is a need to assess damages upon common law principles (subject to any applicable statutory modifications) or both.[34]

51 Returning to s 107(2), the "flavour" of traditional personal injuries litigation is strengthened by the reference therein (albeit non-exhaustive) to any dispute or claim "in negligence, nuisance or trespass".

52 In Graham v Robinson,[35] Smith J held that in the definition of "jurisdictional limit" then contained in s 3 of the Magistrates Court Act 1971 (which referred to "an action where damages claimed consist of or include damages in respect of personal injury"), the expression "personal injury" did not extend beyond physical injury and mental illness to include emotional hurt. His Honour's ruling meant that he did not need to consider the meaning of the expression "in respect of". However his Honour said it may be that "the limit applies to cases where physical or mental injury is alleged as an element in the cause of action and damages are claimed for it and its consequences - pain and suffering, loss of enjoyment of life and loss of earning capacity. Such a claim for damages would be connected to and flow from the ongoing injury or be "in respect of it".[36]

53 Rather tellingly, in my opinion, there appears to be no case in which it has been suggested that a contractual claim under a personal accident policy or an income protection disability policy (or the like) is subject to the special limitations provisions that apply to personal injury claims. On the contrary, in Cigna Insurance Asia Pacific Ltd v Packer,[37] it was assumed on all sides that the ordinary period relating to contractual claims applied.

54 In the abovementioned Scully litigation, it was decided by Spender J at first instance[38] that the payment received by Ms Scully under the relevant superannuation deed after she suffered brain damage in an accident was not a payment "in respect of" personal injury within the meaning of the Income Tax Assessment Act 1936 because the liability existed under the deed regardless of the cause of the employee's (health-related) inability to continue working. Whether that reasoning was upheld in the High Court is not clear, but, in my view, it gives some support to Mr Skewes' position in the present case.

55 Taking these various considerations into account, I have decided that a claim for payment under an insurance policy like the AIA policy does not give rise to, or amount to, a "dispute or claim related to a personal injury" within the meaning of s 107(2). In my view, for a matter to fall within that expression, it must at least involve either (a) a claim that someone wrongfully inflicted a bodily (physical or mental) injury on someone else (although it may not be necessary that the applicant himself or herself suffered the bodily injury or that the respondent himself, herself or itself actually caused the injury[39]); or (b) a claim for compensation or damages to be assessed on common law principles (even if modified by statute) by reference to the nature, extent and consequences of the bodily (physical or mental) injury. It may be that both of these conditions are required to be satisfied. However, I need not decide that, because in the present case neither is satisfied.

56 For these reasons the appeal will be dismissed. I will hear counsel as to costs.

57 The Court records its gratitude to the respondent's counsel, Dr Parkinson and Ms Hamill, and their instructing solicitors, Macpherson & Kelley, who, in the best traditions of the legal profession, represented Mr Skewes pro bono after Mr Skewes, at the Court's suggestion, sought assistance from the Victorian Bar's excellent duty barrister scheme.

[1] The other is s 159, which falls within Part 11. See Davis & Lasker v AAMI Ltd [2008] VCAT 572 at [5]; and see further below.

[2] AIA's written submissions to the Tribunal conceded this, citing Davis & Lasker v AAMI Ltd [2008] VCAT 572; see CB 72.

[11] The notice referred here to s 107 of the Act.

[12] Compare R v Small Claims Tribunal; Ex parte RACV [1981] VicRp 60; [1981] VR 602 at 607-10; Norman v Red Cross Society (1998) 14 VAR 243; Re Simjanovski and Docklands Cotton Mills Pty Ltd (1999) 15 VAR 26; Vero Insurance Ltd v Witherow [2004] VSC 272; (2004) 21 VAR 413; Sigma Constructions (Vic) Pty Ltd v Maryvell Investmetns Pty Ltd [2004] VSCA 242 at [18]; Pizer, Victorian Administrative Law, [VCAT 75.100].

[13] Compare Manningham City Council v Kazantzidis [2008] VSC 365.

[16] See, eg, Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310 at 332, 340; Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45; (2000) 200 CLR 286 at 300; FCT v Scully [2000] HCA 6; (2000) 201 CLR 148 at 167 [28].

[20] See, eg, at [19], [21], [24], [29], [33].

[22] [2010] AATA 263, esp at [20]-[30].

[23] Compare South Pacific Air Motive Pty Ltd v Magnus [1998] FCA 1107; (1998) 87 FCR 301, esp at 316-7 (per Beaumont J) and at 341-4 (per Sackville J); New South Wales v Ibbett [2005] NSWCA 445 at [125] (per Ipp JA) (to the effect that the ordinary meaning of "injury" is wide enough to encompass "anxiety and stress"); compare at [20]-[22] per Spigelman CJ but see Insight Vacations Pty Ltd v Young [2010] NSWCA 137 at [78]-[79] per Spigelman CJ. Compare also Henley Arch Pty Ltd v Hannagan [1999] VCAT 29 in which it was held that, for the purposes of s 54(2) of the Domestic Building Contracts Act 1995 (Vic), which is in similar terms to s 107(2) of the Act, anxiety is a personal injury. Whether a completely endogenous or idiopathic disabling psychological condition, that is to say, a disabling psychological condition with absolutely no external or man-made cause, might be regarded as a "personal injury" under s 107(2) is a matter that I need not decide specifically: see generally Maria Hook, 'New Zealand's Accident Compensation Scheme and Man-Made Disease' [2008] VUWLawRw 15; (2008) 39(2) Victoria University of Wellington Law Review 289.

[24] See Bulasa Pty Ltd v Baytown Properties Pty Ltd [2003] VSC 248; (2003) 20 VAR 189; cf Dover Beach Pty Ltd v Geftine Pty Ltd [2008] VSCA 248 at [37]; Pizer, op cit, at [VCAT 148.460]

[25] See the cases referred to in footnote 12 above. Compare Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 (concerning "jurisdictional facts").

[26] Citing Ansett Transport Industries (Operations) Pty Ltd v Comptroller of Stamps (Vic) [1983] VicRp 90; [1983] 2 VR 305 at 309 per McGarvie J.

[28] Compare Stingel v Clark [2006] HCA 37; (2006) 226 CLR 442 at 453 [17].

[29] In Victoria in particular, for many years (but no longer), both parties had a right under the Rules to a jury in an action in the Supreme Court "for damages for or arising out of bodily injury including any disease or impairment of mental condition". See General Rules of Procedure in Civil Proceedings 1985 (as in force in 1986) r 36.2. However, compare APLA Ltd v Legal Services Commissioner (NSW) [2005] HCA 44; (2005) 224 CLR 322, esp at 375-7 [109]-[114] (per Gummow J), 422 [292] (per Kirby J), 465-75 [431]-[442] (per Callinan J).

[30] Victoria, Parliamentary Debates, Legislative Assembly, 31 October 2002 at 61-2.

[31] See and compare Flanagan v Murdoch Community Services Inc [2010] FCA 647 at [35] and cases and materials there cited; Doughty v Martino Developments Pty Ltd [2010] VSCA 121 at [31]-[33].

[32] Such statutes may properly be considered to be in pari materia with the words in question in s 107(2). See generally Pearce and Geddes, Statutory Interpretation in Australia (6th ed) [3.36]-[3.38].

[33] See, eg, Unsworth v Commissioner for Railways [1958] HCA 41; (1958) 101 CLR 73, esp at 86.

[34] See generally Zurich Australia Insurance Ltd v Regal Pearl Pty Ltd [2006] NSWCA 328 at [37]-[61] and cases there cited.

[36] See also Workers Compensation Board (Qld) v Technical Products Pty Ltd (1988) 165 CLR 642 at 646-7 (per Wilson and Gaudron JJ) and at 656-8 (per Deane, Dawson and Toohey JJ); FCT v Scully [2000] HCA 6; (2000) 201 CLR 148 at 167-72 [28]-[41] (per Gaudron ACJ, McHugh, Gummow and Callinan JJ). Cf Caven v Women's and Children's Health [2007] VSC 7; (2007) 15 VR 447 at 463 (concerning "related to" in s 27B of the Limitations of Actions Act 1958 (Vic)).

[39] See and compare Wurzel v Francis Ryan [2003] VCAT 470; Zurich Australian Insurance Ltd v Regal Pearl Pty Ltd [2006] NSWCA 328.

Civil and Administrative Tribunal Act 1998

Fair Trading Act 1999

Tax Assessment Act 1936

Fair Trading (Amendment) Act 2003

Magistrates Court Act 1971

Building Contracts Act 1995

At a glance

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Judgment (106 paragraphs)

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Legislation Cited (8)

Cases Cited (12)