Introduction
The question in these proceedings is whether the first respondent, Mr Ryan Dollisson (Mr Dollisson), is entitled to sue the applicant, Australian Rail Track Corporation Limited (ARTC), for the recovery of damages consisting of pecuniary or non-pecuniary loss suffered as a result of the traumatic amputation of his right foot while working on a railway site near Barnawartha in Victoria (the Work Site). ARTC was the rail infrastructure manager of the Work Site and had the overall care, control and management of the Work Site. Mr Dollisson was struck by an excavator being operated by an employee of the second respondent, P & C Excavations Pty Ltd (Excavations), a contractor to ARTC. At the time, Mr Dollisson was an employee of the third respondent, Zero 05 Pty Limited trading as CR Rail (the Employer), which had provided labour to Excavations. Mr Dollisson alleges that his injury was caused by the negligence of ARTC, Excavations and the Employer.
The question in the appeal turns on the meaning of the phrase "entitled to compensation" in s 134AB of the Accident Compensation Act 1985 (Vic) (the Compensation Act), to which detailed reference will be made below. The Compensation Act has been repealed but applies to Mr Dollisson's accident, which occurred in 2012. [1] Section 134AB relevantly provided that "a worker who is… entitled to compensation in respect of an injury arising out of or in the course of … employment" must not, in proceedings in respect of the injury, recover any damages for pecuniary or non-pecuniary loss except as provided in s 134AB(1)(a) and s 134AB(1)(b) (emphasis added).
Mr Dollisson commenced proceedings in the Common Law Division of the Supreme Court of New South Wales against ARTC, Excavations and the Employer claiming relief for "damages for personal injury pursuant to the Wrongs Act 1958 (Vic)". In his statement of claim, he alleged, inter alia, that ARTC failed to provide, install and maintain a safe operating system and failed to co-ordinate safe procedures between all persons on the Work Site designed to ensure the safety of workers, including Mr Dollisson. In its defence, ARTC relied on s 27D of the Limitation of Actions Act 1958 (Vic) (the Limitation Act), which relevantly provided that such an action was barred after the expiration of three years from the date on which the cause of action was "first discoverable" by Mr Dollisson.
By notice of motion filed on 6 July 2018, Mr Dollisson sought a declaration that his action was not barred or, in the alternative, an order under ss 27A and 27N of the Limitation Act that the period of limitation be extended, nunc pro tunc, to 26 July 2017, when his statement of claim was filed in the Common Law Division. ARTC opposed the grant of any extension on the basis that the extension had no utility because the procedural requirements referred to in ss 134AB(1)(a) and 134AB(1)(b) of the Compensation Act had not been satisfied.
For reasons published on 12 July 2019, Harrison AsJ concluded that the word "compensation", when it appears in s 134AB(1), must be understood as referring to compensation under the Compensation Act or compensation in accordance with the Compensation Act and that, accordingly, the Compensation Act does not apply to Mr Dollisson's claim against ARTC. Her Honour extended the time for commencing the proceedings as sought in Mr Dollisson's motion under the Limitation Act, notwithstanding that Mr Dollisson had failed to comply with the procedural requirements referred to in ss 134AB(1)(a) and 134AB(1)(b).
By summons filed on 15 August 2019, ARTC seeks leave to appeal from certain of the orders made by Harrison AsJ. Leave is required because the orders were interlocutory. ARTC also sought an extension of the time for filing the summons. That extension was not opposed and was granted during the oral hearing of the application for leave. A direction was given that the appeal be heard concurrently with the application for leave.
[2]
Reasons of Harrison AsJ
It was not disputed that Mr Dollisson suffered his injuries while performing his duties as an employee of the Employer at the Work Site. At the time of the injury, he was performing duties required by his employment and his injury clearly arose out of, in the course of, or due to the nature of, his employment. Mr Dollisson conceded that the procedural requirements referred to in ss 134AB(1)(a) and 134AB(1)(b) of the Compensation Act had not been satisfied.
Harrison AsJ observed that the effect of s 134AB(1), if it applied, was to extinguish, contingently, a worker's cause of action for damages for an injury arising out of, in the course of, or due to the nature of his or her employment. [2] However, her Honour considered that the entitlement to compensation referred to in s 134AB(1) is not an entitlement to compensation at large but an entitlement to compensation where the relevant entitlement to compensation is conferred by the provisions of the Compensation Act itself. Her Honour observed that, if s 134AB were read in isolation, it could be read as excluding Mr Dollisson's entitlement to damages. However, her Honour considered that s 134AB should not be read in isolation and that many of the subsections of s 134AB depend on other provisions of the Compensation Act for their operation, including s 80, which provides that there is no entitlement "to compensation under this Act" other than in respect of employment that is connected with Victoria.
Harrison AsJ observed that, in order for an injury to give rise to an entitlement to compensation under the Compensation Act, the relevant employment must be connected with Victoria. Her Honour held that it was clear that Mr Dollisson's employment was not relevantly connected with Victoria because he usually worked in his employment in New South Wales, he was usually based for the purposes of that employment in New South Wales and the Employer's principal place of business was in New South Wales. Her Honour concluded that, since s 134AB must be read in conjunction with s 80 and Mr Dollisson's employment was not relevantly connected with Victoria, the Compensation Act did not apply to his claim against ARTC. [3]
[3]
The Scheme of the Compensation Act
The difficulty in construing s 134AB is derived from varying usage in the Compensation Act of the word "compensation", sometimes by itself and sometimes in phrases such as "compensation under this Act" and "compensation in accordance with this Act". Before addressing the question, it is desirable to say something about the scheme of the Compensation Act.
Section 3 of the Compensation Act stated that its objects were to:
1. reduce the incidence of accidents and diseases in the workplace;
2. make provision for the effective occupational rehabilitation of injured workers and their early return to work;
3. increase the provision of suitable employment to workers who are injured to enable their early return to work;
4. provide adequate and just compensation to injured workers;
5. ensure workers compensation costs are contained so as to minimise the burden on Victorian businesses;
6. establish incentives that are conducive to efficiency and discourage abuse;
7. enhance flexibility in the system and allow adaption to the particular needs of disparate work situations;
8. establish and maintain a fully-funded scheme; and
9. improve the health and safety of persons at work and reduce the social and economic costs to the Victorian community of accident compensation.
Thus, the Compensation Act was concerned generally with injury to workers in the workplace and the management of the related compensation scheme.
Part I of the Compensation Act deals with preliminary matters and contains detailed definitional material. Part II establishes the Victorian WorkCover Authority (the Authority). The function of the Authority has some relevance. The Authority is established by s 18. Its objectives are set out in s 19 and include:
managing "the accident compensation scheme";
administering the Compensation Act and any other relevant Act;
assisting employers and workers in achieving healthy and safe working environments; and
ensuring that appropriate compensation is paid to injured workers in the most socially and economically appropriate manner and as expeditiously as possible.
Under s 20, the functions of the Authority include:
paying compensation to persons entitled to compensation under the Compensation Act;
ensuring that the scheme of accident compensation is competitive and fully-funded;
providing insurance for the purposes of the Compensation Act and the Accident Compensation (WorkCover Insurance) Act 1993 (Vic);
defending actions against employers under the Compensation Act and at common law;
implementing measures to deter and detect fraudulent workers compensation claims; and
monitoring the operation of occupational health and safety rehabilitation and workers compensation arrangements.
In performing its functions, the Authority must:
ensure the efficient, effective and equitable occupational rehabilitation and compensation of persons injured at work; and
ensure the financial viability and efficient operation of the workers compensation arrangements.
Part III deals with dispute resolution. Division 1 of Part III deals with the jurisdiction of the County Court of Victoria. Division 1A established the Accident Compensation Conciliation Service, Division 2 dealt with the conciliation of disputes and Division 3 dealt with Medical Panels. All are clearly concerned with compensation payable under or in accordance with the provisions of the Compensation Act. In Division 2, the term "dispute" is defined as a dispute in connection with "a claim for compensation" between a person who makes a claim, on the one hand, and an employer, the Authority or a self-insurer. Once again, the word "compensation" is used without the qualification "in accordance with this Act" or "under this Act". Clearly, however, it was concerned with "compensation" payable under the Compensation Act.
Part IV contained the provisions in question in these proceedings. Part IV dealt with "payment of compensation" and consisted of ss 80 to 138B inclusive. Division 1 dealt with the "Application" of Part IV. Division 2 of Part IV dealt with benefits, Division 2A dealt with compensation for maims, pain and suffering and non-economic loss and Division 2B dealt with compensation for medical and like services. Division 5 dealt with payment of compensation.
The pivotal provision of Part IV was s 82, in Div 1. Section 82(1) relevantly provided that, if there is caused to a worker an injury arising out of or in the course of any employment, the worker is to be entitled "to compensation in accordance with this Act". Section 82(2) afforded an entitlement "to compensation in accordance with this Act" to the dependants of a worker whose injury arising out of or in the course of any employment results in or contributes to the death of the worker. However, s 82(2A), (2B) and (2C) provided that there is "no entitlement to compensation" in respect of certain specified injuries such as mental injury, heart attack injury and stroke injury, as those terms are defined. A number of other circumstances where there would be no entitlement to compensation are also set out. [4] The term "compensation", as distinct from "compensation in accordance with this Act", is used in those provisions. Section 82(9) makes clear that, if the section operates to prevent a worker or the worker's dependants recovering compensation in respect of an injury, the worker or the worker's dependants cannot rely on the section to claim to be entitled to take any other action or proceedings in respect of the injury whether under the Compensation Act or otherwise.
A basic qualification for entitlement to compensation under the Compensation Act was s 80(1), which provided that there is no entitlement "to compensation under this Act" other than in respect of employment that is connected with Victoria. Under s 80(2), the fact that a worker is outside Victoria when the injury happens does not prevent an entitlement to compensation arising under the Compensation Act in respect of employment that is connected with Victoria. Subsequent provisions of s 80 specify the circumstances in which employment will be taken to be connected with Victoria. There was no provision in s 80 equivalent to s 82(9) that stipulated the effect of disentitlement to compensation under s 80 on actions or proceedings.
a claim for damages or recovery of contribution brought against a worker's employer in respect of an injury that was caused by the negligence or other tort of the worker's employer or a breach of contract by the worker's employer; and
a claim for damages or recovery of contribution brought against a person other than a worker's employer in respect of an injury if the worker's employment is connected with Victoria and the negligence or other tort or the breach of contract in which the claim is founded occurred in Victoria.
Section 129MA(1) provided, relevantly, that if there is an entitlement to compensation under the statutory workers compensation scheme of a State in respect of an injury to a worker, the substantive law of that State is the substantive law that governs whether or not a claim for damages in respect of the injury can be made and, if it can be made, the determination of the claim. However, under s 129MA(2), Div 6AB does not apply if compensation is payable in respect of the injury under the statutory workers compensation scheme of more than one State.
Division 6AB would apply to a claim for damages or recovery of contribution brought against ARTC only if it can be shown that Mr Dollisson's employment is connected with Victoria. It is clear enough that the negligence or other tort on which his claim is founded occurred in Victoria.
Division 8A of Pt IV, which consists of ss 134AA to 134AGB, dealt with "[a]ctions in respect of injuries arising on or after 20 October 1999". Division 9 dealt with "[a]ctions in respect of injuries to which Division 8A does not apply" and consists of ss 134A to 135B. Under s 134A, a worker who is, or the dependents of a worker who are or may be, "entitled to compensation" in respect of an injury arising out of or in the course of, or due to the nature of, employment on or after 12 November 1997 but before 20 October 1999 "shall not recover" any damages of any kind in proceedings commenced in respect of the injury or otherwise. However, s 134A(1) does not prevent the recovery of damages in proceedings under the Wrongs Act 1958 (Vic), subject to and in accordance with the Transport Accident Act 1986 (Vic) in the circumstances specified in s 134A.
By way of background, s 135 formed part of the original enactment of the Compensation Act and restricted workers entitled to compensation from recovering common law damages except in specified circumstances. It contemplated actions against third parties as well as employers. Section 135A was introduced by the Accident Compensation (Further Amendment) Act 1992 (Vic) and was briefly titled "[f]urther provisions relating to limitation or reduction of damages" and dealt with damages awarded under s 135. Relevantly, s 135A was entirely replaced later that year by the Accident Compensation (WorkCover) Act 1992 (Vic) which introduced "serious injury" as a threshold for workers to meet in order to be permitted to recover damages. In 1997, the Accident Compensation (Miscellaneous Amendment) Act 1997 (Vic) was passed with the express purpose of abolishing certain rights of action at common law. [5] That legislation introduced s 134A which is discussed above.
For present purposes, the pivotal provisions of Division 8A are ss 134AA and 134AB, which were inserted into the Compensation Act in 2000. [6] Section 134AB(1) is in the following terms:
(1) A worker who is, or the dependants of a worker who are or may be, entitled to compensation in respect of an injury arising out of or in the course of, or due to the nature of, employment on or after 20 October 1999 -
(a) shall not, in proceedings in respect of the injury, recover any damages for non-pecuniary loss except -
(i) in accordance with the Transport Accident Act 1986 and subsections (25)(b), (26) and (36)(b) of this section; or
(ii) in proceedings of a kind referred to in section 134AA(b) and in accordance with subsections (25)(b), (26) and (36)(b) of this section; or
(iii) if subparagraphs (i) and (ii) do not apply, as permitted by and in accordance with this section;
[4]
Section 48 of the Interpretation of Legislation Act 1984 (Vic)
In the context of construing the Compensation Act, it is desirable to say something about s 48 of the Interpretation of Legislation Act 1984 (Vic) (the Interpretation Act). Section 48 relevantly provides that a reference to "a locality, jurisdiction or other matter or thing" in an Act of Victoria shall, unless the contrary intention appears, be construed as a reference to such locality, jurisdiction or other matter or thing "in and of Victoria".
Neither s 82 nor s 134AB of the Compensation Act is geographically limited in terms. However, s 80 provides that there is no entitlement to compensation under the Compensation Act other than with respect to employment connected with Victoria. Section 80(3) and s 80(5) specify the criteria by which it is to be determined whether a worker's employment is relevantly connected with Victoria. To that extent, a geographical limitation is imposed on a worker's entitlement to compensation under the Compensation Act.
The Compensation Act recognises the operation of workers compensation regimes under other State jurisdictions, in that s 129MA expressly enables the operation of another State's workers compensation regime in respect of a workplace injury suffered in Victoria where entitlements to compensation arise under the regime of that other State. Under s 129MA, if there is an entitlement to compensation under the statutory workers compensation scheme of another State, in respect of an injury to a worker, the substantive law of that other State governs whether or not a "claim for damages" can be made and, if it can be, the determination of the claim. However, that provision appears to relate primarily to a claim for damages against the worker's employer.
Section 129MA is found in Div 6AB of the Compensation Act, which deals with the choice of law for work injury claims. Under s 129MB(1), Div 6AB applies only to a claim for damages brought against a worker's employer that satisfies the conditions in s 129MB(1)(a) and s 129MB(1)(b). Under s 129MB(2), Div 6AB also applies to a claim for damages or contribution against a person other than the worker's employer that satisfy the conditions in s 129MB(2)(a) and s 129MB(2)(b). Section 129MB(2) applies irrespective of whether the employer is also a party to the proceedings dealing with the claim for damages. [13]
Section 129MB(2)(a) is not satisfied in the present case as Mr Dollisson's employment is not connected with Victoria. It follows that Div 6AB does not apply. [14] The cause of action in negligence that Mr Dollisson seeks to prosecute against ARTC arises under the common law and not under a statute. Since the alleged negligence occurred in Victoria, the law of Victoria applies as the lex loci delicti.
Since s 80 and Div 6AB of the Compensation Act made specific provision for the geographical operation of the provisions of the Compensation Act and the operation of interstate compensation schemes with respect to injuries suffered by workers in Victoria in the course of their employment, the Compensation Act displaces the operation of s 48 of the Interpretation Act. The effect of s 80 and Div 6AB is that the place of employment is chosen as the means by which to impose a geographical limit on the operation of the Compensation Act and to enable the operation of the legislation outside of Victoria. Accordingly, the provisions of the Compensation Act evince a contrary intention for the purposes of s 48 of the Interpretation Act.
[5]
The Question in the Proceedings
ARTC contends that s 134AB of the Compensation Act applies and that Mr Dollisson was prohibited from commencing these proceedings, such that the proceedings are currently a nullity because he has not obtained the consent of the Authority to commence the proceedings. [15] Section 134AB relevantly provides that a worker, in the circumstances in which it applies, "shall not … recover any damages" for non-pecuniary loss or for pecuniary loss in proceedings in respect of the injury. It does not, in terms, render the proceedings a nullity. On the other hand, there may be little utility in prosecuting proceedings if the plaintiff is not entitled to recover either pecuniary or non-pecuniary damages. ARTC accepts that Mr Dollisson may ultimately be able to commence proceedings if he were to make a successful application to the Authority and the Authority were to give consent or, if the Authority refused consent, by making an application to a competent court for determination that he has suffered a "serious injury" within the meaning of s 134AB.
The evidence currently indicates that the degree of Mr Dollisson's impairment as a result of his injury is less than 30 per centum, that the Authority has not issued a certificate consenting to the bringing of the relevant proceedings and that there is no suggestion that the Authority is satisfied that Mr Dollisson's injury is a "serious injury" within the meaning of the Compensation Act. Accordingly, if s 134AB is applicable, Mr Dollisson is not entitled to recover from ARTC the damages that he claims in the proceedings. Section 134AB(1) will be applicable if Mr Dollisson is "entitled to compensation" in respect of the injury that he suffered in the accident.
Mr Dollisson accepts that, since the place where the alleged wrong on the part of ARTC occurred was Victoria, it is the substantive law of Victoria that will determine all questions of substantive law in his claim against ARTC in the Supreme Court of New South Wales. That will be the case whether the jurisdiction exercised by the Supreme Court of New South Wales is federal jurisdiction, by virtue of s 80 of the Judiciary Act 1903 (Cth), or is State jurisdiction. The substantive law of Victoria consists of the common law of Australia, as modified by relevant Victorian statute law. [16]
However, the mere fact that s 134AB of the Compensation Act is a Victorian statutory provision does not, without more, mean that it applies in the present case. Before it can be concluded that a particular Victorian statutory provision, such as s 134AB(1), modifies the common law of Australia in such a way as to affect the existence, extent or enforceability of rights and obligations of the parties, the relevance of the provisions to the case must first be ascertained. If they are not relevant to the particular case, no occasion arises for them to be applied. Mr Dollisson asserts that s 134AB(1) is irrelevant to the claim that he makes against ARTC.
Section 129MB(2)(a) of the Compensation Act is not satisfied because Mr Dollisson's employment was not relevantly connected with Victoria. Accordingly, the choice of law rule contained in s 129MA does not apply to his claim against ARTC and the choice of law rules governing his claim against ARTC are the common law rules. [17]
As indicated above, Harrison AsJ attached some significance to s 80 in construing s 134AB. However, s 80 was not in the Compensation Act when s 134AB was inserted. Section 134AB and s 134AA were introduced into the Compensation Act in 2000 in order to restore access, for seriously injured workers, to common law damages against employers after the right to such access was proscribed by s 134A of the Compensation Act. While ss 134AA and 134AB restored access to common law damages, they only did so subject to the substantive condition that the injured worker has been assessed to have suffered a "serious injury". By contrast, s 80 was not introduced into the Compensation Act until 2003. While s 80 limits the availability of compensation, it does not limit the availability of compensation or damages under any other statutory scheme, such as the New South Wales workers compensation scheme.
Section 80 was introduced to provide consistency in the compensation entitlements of workers who are temporarily working outside Victoria by:
reducing the need for employers to obtain workers compensation coverage for a worker in more than one jurisdiction at one time;
allowing employers to determine readily in which jurisdiction to insure their workers;
ensuring that workers working temporarily in another jurisdiction have access to workers compensation entitlements available in their "home" jurisdiction; and
providing certainty for workers as to their workers compensation entitlements. [18]
No suggestion was made when s 80 was introduced into the Compensation Act that it was intended to impact on the breadth of the statutory condition imposed by s 134AB. No consequential amendment of ss 134AA or 134AB was made in 2003 when s 80 was introduced.
Section 134AB is not expressed to be subject to s 80, which appears in a different division of the Compensation Act from the division in which s 134AB is to be found. Section 134AB is in Div 8A of Pt IV, which governs the statutory conditions on bringing actions for common law damages, whereas s 80 is in Div 1 of Pt IV, which governs the availability of compensation under the Compensation Act. Accordingly, there is no basis in the text of either s 80 or s 134AB, or their respective contexts, for reading the provisions in conjunction with each other or for not giving the reference to "compensation" in s 134AB its ordinary and natural meaning. To the extent that Harrison AsJ did so, her Honour erred. That, however, is not the end of the matter.
In their terms, the prohibitions in ss 134AB and 134AA of the Compensation Act apply to claims against non-employers for damages referable to injury and arising out of or in the course of employment. [19] The question is whether, since Mr Dollisson's injuries arose out of, in the course of, or due to the nature of his employment, the prohibition in s 134AB applies, albeit that Mr Dollisson is entitled to compensation under the Workers Compensation Act 1987 (NSW) (the 1987 NSW Act) and the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the 1998 NSW Act), and not under, or in accordance with, the Compensation Act.
The scheme of the Compensation Act recognises entitlement to compensation not only under or in accordance with the Compensation Act but also under the legislative schemes of other States and Territories, including under the 1987 NSW Act and the 1998 NSW Act. Balancing the legitimate interests of a person other than a worker's employer against the interests of a Victorian worker involved policy choices by the Parliament. The policy choices that the Victorian Parliament made in relation to compensation under the Compensation Act were reflected in s 129MB. [20] That is to say, the choice of law was made to depend upon the worker's employment being connected with Victoria. However, that does not ultimately bear on the meaning of the phrase "entitled to compensation" in s 134AB.
The difficulty in construing s 134AB arises from various usages of the word "compensation" in the Compensation Act. In some places it appears by itself. In other places it appears as part of the phrases "compensation under this Act" or "compensation in accordance with this Act". The use of phrases such as "compensation under this Act" and "compensation in accordance with this Act" elsewhere in the Compensation Act may suggest that the Parliament deliberately eschewed use of such qualifications as a condition on the application of s 134AB when that provision was inserted into the Compensation Act in 2000.
Several considerations lead to the conclusion that the construction advanced on behalf of ARTC should be accepted. That would result in the appeal being allowed.
First, under s 134AB, a worker may recover damages for non-pecuniary loss in respect of an injury arising out of or in the course of employment if, as 134AB(1)(a)(i) provides, the worker does so in accordance with the Transport Accident Act 1986 (Vic) (the Transport Act). The reference to the Transport Act indicates that "compensation" encompasses entitlements beyond the Compensation Act. The purpose of the Transport Act is to "establish a scheme of compensation in respect of persons who are injured or die as a result of transport accidents". [21] That scheme of compensation is discrete from the compensation scheme established by the Compensation Act and is administered by the Transport Accident Commission rather than the WorkCover Authority.
[6]
Conclusion
The substantive relief sought in the draft notice of appeal is that the order under the Limitation Act made by Harrison AsJ, extending the period for Mr Dollisson to commence proceedings against ARTC, be set aside. The only ground on which ARTC relied in the application for leave is that there would be no utility in extending the period if s 134AB of the Compensation Act applies to Mr Dollisson's claim. Harrison AsJ concluded that s 134AB does not apply. However, her Honour did not indicate whether, even if s 134AB does apply, she would not have extended the time.
Since s 134AB applies, Mr Dollisson would not be entitled to recover any pecuniary or non-pecuniary damages from ARTC. There may, therefore, be no utility in extending the time for commencement of the proceedings against ARTC. In that case, the appropriate order may be to refuse the application for an extension of time, such that the following orders would be appropriate:
Grant leave to appeal.
Allow the appeal.
Order that orders 3, 4, 5, and 6 made on 12 July 2019 be set aside.
Order that the plaintiff's notice of motion filed on 6 July 2018 be dismissed.
Order that the first respondent pay the applicant's costs of the application for leave and the appeal.
Order that, if he is otherwise entitled, the first respondent have a certificate under the Suitors' Fund Act 1951 (NSW).
Ordinarily, a question of the application of a limitation period ought not be determined in interlocutory proceedings but should be determined on a final basis either at a trial of the proceedings or as a preliminary question. In the draft notice of appeal, ARTC also seeks orders that Mr Dollisson's statement of claim filed on 25 July 2017 and his amended statement of claim filed on 23 April 2018 be struck out. If Mr Dollisson accepts that that is the consequence of the determination reached above, there should also be a direction that judgment be entered for ARTC. Otherwise the proceedings should be remitted to the Common Law Division for further consideration in the light of the conclusions reached in these reasons.
[7]
Endnotes
The Compensation Act was replaced by the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) which came into effect on 1 July 2014.
See Quinlan v Catholic Regional College Sydenham [2015] VSC 463.
See Dollisson v Australian Rail Track Corporation Limited [2019] NSWSC 870 (primary decision) at [219]-[220].
Compensation Act, s 82(3), (4), (8).
See Accident Compensation (Miscellaneous Amendment) Act 1997 (Vic), s 1(b).
Inserted by Accident Compensation (Common Law and Benefits) Act 2000 (Vic), s 18.
See Victoria, Parliamentary Debates, Legislative Assembly, 13 April 2000, pp 1001-1011 (Robert G Cameron, Minister for WorkCover).
Victoria, Parliamentary Debates, Legislative Assembly, 13 April 2000, p 1002 (Robert G Cameron, Minister for WorkCover).
See discussion in Barwon Spinners v Podolak (2005) 14 VR 622 at 626-628; [2005] VSCA 33 at [2]-[3] ("Barwon Spinners").
See Di Paolo v Salter Constructions Pty Ltd [2015] VSCA 230 at [103] ("Di Paolo").
See Di Paolo at [99].
Wickham v Freight Lines Pty Ltd v Ferguson (2013) 83 NSWLR 162; [2013] NSWCA 66 at [27].
See John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at 517-518 and 561-562; [2000] HCA 36 at [13]-[17] and [154]-[161] ("Pfeiffer").
See Di Paolo at [99] and [103].
Victoria, Parliamentary Debates, Legislative Assembly, 16 October 2003, pp 1154-1158 (Robert J Hulls, Attorney-General and Minister for WorkCover).
See Kidman v Sefa [1996] 1 VR 86 at 90; Farrar v Western Metropolitan College of TAFE [1999] 1 VR 224; [1998] VSCA 25 at [6], [21] and [26].
See Di Paolo at [117].
Transport Accident Act 1986 (Vic), s 1.
Transport Accident Act 1986 (Vic), s 35(1).
See Georgopoulos v Silaforts Painting Pty Ltd (2012) 37 VR 232; [2012] VSCA 179 at [46] and [47] ("Georgopoulos").
For example Grech v Orica Australia Pty Ltd [2006] VSCA 172; Martin v Bailey [2009] VSCA 263.
Pfeiffer (2000) 203 CLR 503; [2000] HCA 36.
Di Paolo [123]-[128].
Accident Compensation Act 1985 (Vic), s 129MA(1).
See discussion above at [29].
For a comprehensive discussion, see Di Paolo.
Di Paolo [14].
See Di Paolo at [117].
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 31 March 2020
Parties
Applicant/Plaintiff:
Australian Rail Track Corporation Limited
Respondent/Defendant:
Dollisson
Legislation Cited (23)
Accident Compensation (Common Law and Benefits) Act 2000(Vic)s 18
Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543; [2002] HCA 49
Di Paolo v Salter Constructions Pty Ltd [2015] VSCA 230
Electrolux Home Products Pty Ltd v Australian Workers' Union (2004) 221 CLR 309; [2004] HCA 40
Farrar v Western Metropolitan College of TAFE [1999] 1 VR 224; [1998] VSCA 25
Georgopoulos v Silaforts Painting Pty Ltd (2012) 37 VR 232; [2012] VSCA 179
Grech v Orica Australia Pty Ltd (2006) 14 VR 602; [2006] VSCA 172
Houssein v Under Secretary, Department of Industrial Relations and Technology (NSW) (1982) 148 CLR 88; [1982] HCA 2
John Pfeiffer v Rogerson (2000) 203 CLR 503; [2000] HCA 36
Kidman v Sefa [1996] 1 VR 86
Martin v Bailey (2009) 26 VR 270; [2009] VSCA 263
Maurice Blackburn Cashman v Brown (2011) 242 CLR 647; [2011] HCA 22
National Grid Co plc v Mayes [2001] 1 WLR 864
Potter v Minahan (1908) 7 CLR 277; [1908] HCA 63
Quinlan v Catholic Regional College Sydenham [2015] VSC 463
Robart v Matchplan Pty Ltd (in liq) (Victorian Court of Appeal, 21 December 1993, unrep)
Rogers v State of Victoria [2011] VSC 298
SAS Trustee Corporation v Miles (2018) 361 ALR 206; [2018] HCA 55
Wickham v Freight Lines Pty Ltd v Ferguson (2013) 83 NSWLR 162; [2013] NSWCA 66
Texts Cited: P Herzfeld and T Prince, Interpretation (2nd ed, 2020, LawBook Co, forthcoming)
Category: Principal judgment
Parties: Australian Rail Track Corporation Limited (Applicant/Appellant)
Ryan Dollisson (First Respondent)
P & C Excavations Pty Ltd (Second Respondent)
Zero 05 Pty Limited t/as C R Rail (Third Respondent)
Representation: Counsel:
S Smith QC with J Mitchell (Applicant/Appellant)
I Roberts SC with R Ajzensztat and P Menary
(First Respondent)
Submitting appearance (Second and Third Respondents)
Solicitors:
Wallmans Lawyers (Applicant/Appellant)
by their agent Carroll & O'Dea
Maurice Blackburn Lawyers (First Respondent)
Thompson Cooper Lawyers (Second Respondent)
Turks Legal (Third Respondent)
File Number(s): 2019/254248
Publication restriction: N/A
Decision under appeal Court or tribunal: Supreme Court of New South Wales
Jurisdiction: Common Law
Citation: [2019] NSWSC 870
Date of Decision: 12 July 2019
Before: Harrison AsJ
File Number(s): 2017/226236
Section 84 was concerned with compensation for workers whose employment is relevantly connected with Victoria but who are injured outside Victoria. However, s 84B provided that compensation under the Compensation Act is not payable in respect of an injury to the extent that compensation has been received in respect of the same injury under the laws of a place other than Victoria, whether within or outside Australia.
It is curious that both ss 80 and 84B use the phrase "compensation under this Act", whereas ss 82 and 84 use the phrase "compensation in accordance with this Act". The former provisions were both inserted under the same amendment under the Accident Compensation and Transport Accident Acts (Amendment) Act 2003 (Vic), whereas the latter formed part of the text of the Compensation Act as originally enacted. The difference between the two phrases, if any, is by no means clear.
Division 6AB of the Compensation Act, consisting of ss 129MA to 129MF, dealt with choice of law. Under s 129MB, Div 6AB applied only to:
In his speech on the reading of the Bill for the Accident Compensation (Common Law and Benefits) Act 2000 (Vic), which inserted ss 134AA and 134AB and amended s 134A to apply only to injuries arising between certain dates, the Minister said that its purpose was to implement an election commitment to restore access to common law damages for seriously injured workers to sue employers and recover damages. The Minister said that the right of seriously injured workers to sue negligent employers was a fundamental right that should never have been removed and that the new ss 134AA and 134AB reinstated the right of an injured worker who was or may be entitled to compensation under the Compensation Act in respect of an injury arising out of or in the course of or due to the nature of his employment to recover damages in respect of the injury, subject to certain limitations and conditions. [7] Thus, the object of ss 134AA and 134AB was to reverse the effect of s 134A.
However, the terms of s 134AB introduced a less permissive concept of "serious injury" than was previously available prior to the 1997 amendments. The Minister said that, in introducing s 134AB:
The commitment of this government to restore common-law rights to seriously injured workers has an equal commitment to ensure that the costs of the restoration of common-law rights are confined and the number of common-law claims and the cost of those claims can be actuarially measured in a reasonably predictable manner. [8]
It appears that, in 2000, the Victorian Parliament intended to reintroduce common law rights, but on a restricted and controlled basis. [9] Thus, in effect, s 134AB prohibits a common law action "otherwise than as permitted by and in accordance with this section" and then establishes a complicated set of conditions that provide a limited exception to that general prohibition. [10]
To that end, s 134AA relevantly provided that a worker who is "entitled to compensation in respect of an injury" that arises out of or in the course of, or due to the nature of, employment on or after 20 October 1999 shall not recover any damages in respect of pecuniary loss except:
1. in proceedings in respect of an injury or death arising out of a transport accident within the meaning of the Transport Accident Act 1986 (Vic) on or after 20 October 1999 -
1. otherwise than under Part III of the Wrongs Act 1958 (Vic) against the employer or any other person, subject to and in accordance with the Transport Accident Act 1986; or
2. under Part III of the Wrongs Act 1958 against the employer or the employer and any other person, subject to and in accordance with the Transport Accident Act 1986; or
3. under Part III of the Wrongs Act 1958 against a person other than the employer, subject to and in accordance with the Transport Accident Act 1986; or
1. in proceedings to which the employer is not a party where the injury is deemed to have arisen out of or in the course of employment, if the worker's place of employment is a fixed place of employment and the injury did not occur while a worker was present at that fixed place of employment.
Similarly, s 134AB(1) relevantly provided that a worker who is "entitled to compensation in respect of an injury" that arises out of or in the course of, or due to the nature of, employment on or after 20 October 1999:
1. shall not, in proceedings in respect of the injury, recover any damages for non-pecuniary loss except
1. in accordance with the Transport Accident Act 1986 (Vic) and subsections (25)(b), (26) and (36)(b) of s 134AB; or
2. the proceedings referred to in s 134AA(b) and in accordance with subsections (25)(b), (26) and (36)(b) of s 134AB; or
3. as provided by s 134AB; and
1. shall not, in proceedings in respect of the injury, recover any damages for pecuniary loss except in proceedings referred to in s 134AA and in accordance with subsections (25)(a), (26) and (36)(a) of s 134AB, or in accordance with s 134AB.
Under s 134AB(2), a worker may recover damages in respect of an injury arising out of, or in the course of, or due to the nature of, employment if the injury is a serious injury and arises on or after 20 October 1999.
Section 134AB(3) relevantly provided that a worker may not bring proceedings in accordance with s 134AB unless determinations of the degree of impairment of the worker have been made under s 104B and the worker has made an application under s 134AB(4), [11] or the worker elects to make an application under s 134AB(4) on the ground that the worker has a serious injury. [12] Section 134AB(4) relevantly provided that a worker may only make an application if s 134AB(3)(a) applies, after the worker has advised the Authority that the determinations of the degree of impairment are accepted or if s 134AB(3)(b) applies, after a period of at least 18 months has elapsed since the event or circumstance giving rise to the injury occurred. However, each of those provisions is subject to s 134AB(4A), which relevantly provided that, if a worker has made a claim for compensation under s 98C for non-economic loss in respect of an injury, the worker must not make an application under s 134AB(4) in respect of that injury unless the degree of impairment has been determined, the worker has accepted the determination of the degree of impairment under s 104B and the worker has accepted the entitlement to compensation.
Section 134AB(16) relevantly provided that if the assessment, under s 104B, of the degree of impairment of the worker as a result of the injury is less than 30 per centum, proceedings may not be brought for the recovery of damages in respect of the injury unless the Authority or self-insurer is satisfied that the injury is a "serious injury" and issues a certificate consenting to the bringing of the proceedings or a court, on the application of the worker, gives leave to bring the proceedings. Section 134AB(22) imposes limits on the pecuniary loss damages and the pain and suffering damages and damages of any other kind other than damages in the nature of interest that may be awarded to a worker in respect of an injury.
Parts V to IX dealt with self-insurers, non-WorkCover employers, prohibited conduct relating to touting for claims, return to work, and savings and transitional provisions. Those provisions are not presently relevant.
The Transport Act confers an entitlement to compensation on certain persons injured in transport accidents. [22] Persons injured in a transport accident are then restricted from recovering damages in proceedings in respect of their injuries, unless they meet requirements under s 93 of the Transport Act which share some similarity with the serious injury requirements under s 134AB of the Compensation Act. For a person to bring proceedings in accordance with the Transport Act, that Act would have to apply to the injury, which would usually mean the person is entitled to compensation under the Transport Act. Therefore, when s 134AB places restrictions upon persons who are "entitled to compensation" in respect of injuries relating to employment, it contemplates, at the very least, persons who have a separate entitlement under the Transport Act and not exclusively under the Compensation Act.
Further, s 134AB(1)(i) modifies aspects of damages that might be awarded in accordance with the Transport Act by requiring compliance with ss 134AB(25)(b), (26) and (36) of the Compensation Act. That indicates an intention beyond merely regulating actions brought by persons entitled to compensation under the Compensation Act, and to regulate common law claims brought in Victoria by persons who suffer injuries compensable under other schemes. While perhaps not determinative, it points towards an intention that s 134AB(1) be of general application. That is not, of itself, sufficient to meet ARTC's contention that "compensation" includes NSW compensation entitlements, but it reduces some of the force of Mr Dollisson's contention that it exclusively refers to compensation "under" or "in accordance" with the Compensation Act.
Secondly, the Compensation Act recognises the possibility of a right to compensation under the scheme of another State or Territory. For example, s 84B provides that compensation under the Compensation Act is not payable in respect of an injury to the extent that compensation has been received in respect of the same injury under the laws of a place other than Victoria, whether within or outside Australia. Under s 84B(2), if a person receives compensation under the Compensation Act in respect of an injury and, in respect of the same injury, subsequently receives compensation under the laws of a place other than Victoria, whether within or outside Australia, the person from whom compensation under the Compensation Act has been received may recover from the person the amount calculated in accordance with s 84B. Further, as indicated above, s 129MA refers to "an entitlement to compensation under the statutory workers' compensation scheme of a State".
It is also relevant that the Authority has power, under s 20B(1)(d), to enter into agreements with a government department or a statutory authority of the government of the Commonwealth or another State or Territory that is responsible for administering a law corresponding to the legislation identified in s 19(b) of the Compensation Act. That legislation includes the Accident Compensation (WorkCover Insurance) Act 1993 (Vic) and the Workers Compensation Act 1958 (Vic). Under such agreements, the Authority may perform the functions or exercise the powers of any such corresponding authority as the agent for the corresponding authority.
Thus, the Compensation Act expressly recognises the existence of schemes for the payment of "compensation" to injured workers established by legislation of jurisdictions other than Victoria. That tends to support the conclusion that s 134AB, in referring to a worker being "entitled to compensation in respect of an injury", should not be construed as being limited to a reference to compensation payable under or in accordance with the Compensation Act.
An arrangement exists between the Authority and the Transport Accident Commission for the management of claims. Thus, the Transport Act makes specific reference to the Compensation Act. Section 11(e) of the Transport Act indicates that an objective of the Transport Accident Commission is "to manage claims under the Accident Compensation Act 1985 as an authorised agent of the Victorian WorkCover Authority as effectively, efficiently and economically as possible". The Authority under the Compensation Act is permitted to enter agreements and contracts with a "corresponding Authority" of the Commonwealth or another State or Territory government. If taking the use of the word "compensation" in s 134AB(1) as referring to schemes other than under the Compensation Act, such as the Transport Accident scheme, it is apparent that compensation under such schemes is intended to be similarly regulated and subject to common law claim restrictions.
Thirdly, s 134AB(1) defines the class of persons to whom it applies by reference to those who are or may be entitled to compensation in respect of an injury arising out of or in the course of or due to the nature of employment. That is a reference back to s 82(1) of the Compensation Act. [23] The potential breadth of the notion of an injury under s 82 is controlled by the causal connection stipulated, being any injury caused to a worker arising out of or in the course of any employment.
Prior to 2003, wherever it was successfully established that there had been an "injury" arising "out of or in the course of, or due to the nature of, employment", it was axiomatic that an entitlement to compensation arose under s 82(1), which provided an entitlement for an "injury" arising "out of or in the course of any employment". The notion of "compensation" in s 134AB was secondary to the primary issue, namely, the character of the injury. That was the context in which most subsequent cases, despite the 2003 amendments, continued to discuss the "compensable injury" as the primary concept around which s 134AB hinged. Such cases were concerned with the construction of the terms "injury" and "arising out of employment". Thus, the references in Barwon Spinners, Georgopoulos and other cases [24] to a "compensable injury" being an injury giving rise to an entitlement "under the Act" are made because those cases revolved around issues related to whether or not the plaintiff suffered an "injury", or whether the injury was one "arising out of or in the course of employment". In those contexts, no issue of s 80 arose. Where the plaintiff succeeded in his or her contentions about injury, it naturally followed that the plaintiff was entitled to compensation under the Act and s 134AB applied. In other words, there was no contemplation of scenarios where a plaintiff satisfied s 82(1) but was excluded by s 80.
Fourthly, the effect of s 129MA(1) is that, if there is an entitlement to compensation under the statutory workers compensation scheme of a State in respect of an injury to a worker, the substantive law of that State is the substantive law that governs whether or not a claim for damages in respect of the injury can be made and, if it can be made, the determination of the claim. Under s 129MB(1), that provision applies only to a claim for damages or recovery of contribution brought against a worker's employer in respect of an injury that was caused by the negligence or other tort of the worker's employer or a breach of contract by the worker's employer.
If ARTC were Mr Dollisson's employer in respect of the injury that he sustained in Victoria, Victorian law (including any applicable statute law) would apply, because the injury occurred in Victoria. [25] If Mr Dollisson was entitled to compensation under the statutory workers compensation scheme of New South Wales, s 129MA(1) would identify New South Wales as the governing law. The Court would then apply New South Wales law (including any applicable New South Wales statute law) to determine Mr Dollisson's claims. That law may or may not allow or limit the recovery of common law damages against ARTC as his employer, and the extent of damages recoverable may be conditional on Mr Dollisson satisfying certain statutory thresholds, in terms of impairment, seriousness of injury and the like, including whether he had received workers compensation. It may well be anomalous for the Victorian legislature to direct the application of New South Wales law to govern the question of liability in such a case, yet require Mr Dollisson first to satisfy gateways that were part of Victorian law.
However, ARTC is not Mr Dollisson's employer and there are reasons why he would be required to satisfy those gateways in proceedings brought against a third party in respect of an injury suffered in Victoria. Thus, the choice of law provisions were not intended to displace the common law rules fully and it is possible for claims arising out of the same injury against an employer and a non-employer to be governed by different laws. [26] Section 129MA, in Div 6AB, provides that, if a party is entitled compensation under the statutory workers compensation of a State in respect of an injury, the substantive law of that State governs whether or not a claim for damages in respect of that injury can be made and, if it can be made, the determination of the claim. [27] Section 129MB clarifies the application of that statutory renvoi by setting out the claims to which Div 6AB applies. Under s 129MB(1), Div 6AB applies to actions against employers in claims concerning an injury caused by the negligence or other tort of the employer or a breach of contract by the employer. The position is different with respect to actions against third parties, as s 129MB(2) provides that Div 6AB applies to a claim for damages against a person other than a worker's employer in respect of an injury if the workers employment is connected with Victoria and the negligence, other tort or contractual breach occurred in Victoria. Where Div 6AB does not apply, the common law choice of law rules apply.
Taken as a whole, Div 6AB does not significantly alter the choice of law rules with respect to actions against third parties in respect of injuries arising in Victoria by plaintiffs with an entitlement under a compensation statute, either of Victoria or elsewhere. Where a claim such as the one by Mr Dollisson is brought and there is a claim to compensation in a State other than Victoria but the employment is not connected to Victoria, then s 129MB(2) renders Div 6AB inapplicable to the third party claim and the common law choice of law rules apply. In that situation, the lex loci delicti is Victoria, so Victorian law would govern the availability and determination of the third party claim.
Further, Div 6AB does not enable a statutory renvoi away from Victoria in respect of a third party claim arising out of an injury suffered in Victoria. For example, consider the situation where Mr Dollisson's employment was connected with Victoria and the negligence or other act occurred in Victoria. Section 129MB(2) would then enable the substantive law of the State where there is an entitlement to compensation to govern the claim. However, if he satisfies s 129MB(2), then it is almost certain that his injury entitles him to compensation under the Compensation Act pursuant to ss 80 and 82. If Mr Dollisson somehow also had an entitlement to NSW compensation, s 129MA(2) would render Div 6AB inapplicable as there would be an entitlement to compensation in more than one State and the common law choice of law rules would then apply Victorian law as the lex loci delicti. If there were no NSW entitlement, Div 6AB would not be excluded by ss 129MA(2) and 129MB(2) would direct Victorian substantive law to govern the availability and determination of the claim. Yet again, Victorian law would govern his claim.
Thus, common law claims against third parties concerning employment injuries, irrespective of whether they are connected with Victoria, are governed by Victorian law if they are suffered in Victoria. It appears that the intention of the Victorian legislature was to allow the substantive law of other jurisdictions to govern claims against employers where there is a workers compensation entitlement, but not to allow that to have an impact on proceedings under Victorian law against a third party in respect of injuries suffered in Victoria.
Significantly, s 80 and Div 6AB of the Compensation Act were inserted at the same time under the Accident Compensation and Transport Accident Acts (Amendment) Act 2003 (Vic). Prior to the insertion of s 80, Mr Dollisson would have been entitled to compensation under the Compensation Act because there was no requirement that his employment needed to be connected with Victoria. The fact that he was injured in Victoria through his employment would have been sufficient. The common law choice of law rules would direct the substantive law governing his claim be that of Victoria. In those circumstances, compliance with s 134AB(1) would clearly be required. As indicated above, the introduction of Div 6AB did nothing to disturb the position that Victorian law would govern the availability and determination of claims against third parties, including the requirement that they meet the s 134AB thresholds.
The question then turns to whether the Victorian Parliament intended, by introducing s 80 and Div 6AB, to remove the requirements that a claimant had to satisfy under s 134AB(1) before recovering damages from third parties, where the claimant's employment was not connected to Victoria but suffered an injury in Victoria. That appears unlikely given the clear intention, by introducing s 134AB in 2000, to restore only a qualified range of common law actions in order to limit the costs to Victorian businesses, [28] and a corresponding absence of any such indication that those limiting measures were supposed to be altered or removed by the introduction of Div 6AB and s 80.
Div 6AB and s 80 (and their equivalents in other States) were introduced to create certainty as to where workers' compensation claims would be made. [29] Section 80 excludes compensation under the Compensation Act for a worker whose employment was not connected with Victoria, thereby affording certainty as to the location of an entitlement. That is because parallel provisions exist in other Australian jurisdictions as part of an agreed scheme of uniform legislation involving all the States and the Australian Capital Territory. [30] Section 80 and its equivalents prevent multiple compensation claims arising across different jurisdictions by recognising only a claim where the relevant employment is connected with the jurisdiction will survive, while Div 6AB operates to remit claims to the jurisdiction with which the employment is relevantly connected. Together, they form part of a wider national arrangement for managing compensation claims.
The above analysis indicates that, prior to the introduction of s 80 and Div 6AB, there was an unambiguous protection regarding common law claims in respect of injuries arising out of employment suffered in Victoria available to third party defendants. The choice of law provisions under Div 6AB do not create any significant change to the choice of law regarding actions against third parties that concern injuries arising in Victoria, which remain governed by Victorian law. On that basis, it is unlikely that the Victorian legislature intended the introduction of s 80 and Div 6AB to dismantle the comprehensive restrictions upon all common law claims arising out of employment related injuries suffered in Victoria without clearly indicating such an intention. Such a construction also unnecessarily conflicts with the purpose of the Compensation Act under s 3(e) to "ensure workers compensation costs are contained so as to minimise the burden on Victorian businesses" and s 3(i) to "reduce the social and economic costs to the Victorian community of accident compensation", which were evidently concerns underpinning s 134AB.
Further, it would be highly anomalous if the protection from common law damages for a workplace injury suffered in Victoria depended upon whether or not the employer of an injured worker was located in Victoria and not on where the injury occurred. For example, an owner or occupier of land in Victoria might have a reasonable expectation that legal liability of that owner or occupier, for events occurring on the land, would be governed by the laws of Victoria rather than by reference to the jurisdiction in which a worker's employer was located, a jurisdiction with which the owner or occupier may have no connection. [31] It follows, that "compensation" should not be limited to compensation "under" or "in accordance with" the Compensation Act.
Thus, where Mr Dollisson is making a claim in a New South Wales Court against ARTC, which is not his employer, he should be required to satisfy the gateways of s 134AA or s 134AB. That is to say, while the question is certainly not without doubt and difficulty, the preferable view is that those provisions are applicable to the claims made by Mr Dollisson against ARTC.
Judgment
BELL ACJ: Mr Ryan Thomas Dollisson (Mr Dollisson), a resident of New South Wales and employed by Zero 05 Pty Limited trading as CR Rail (CR Rail), a company incorporated in and which carried on business in New South Wales, was injured in Victoria whilst working on a rail line owned by the applicant, Australian Rail Track Corporation Limited (ARTC).
Mr Dollisson is not and was not entitled to compensation under the Accident Compensation Act 1985 (Vic) (the ACA) because his employment was not connected with Victoria within the meaning of s 80(1) of that Act. He was, however, entitled to and did receive compensation under the Workers Compensation Act 1987 (NSW) and the Workplace Injury Management and Workers Compensation Act 1998 (NSW) as his employment was connected with New South Wales within the meaning of s 9AA of the Workers Compensation Act.
Mr Dollisson sought damages for personal injury in the Supreme Court of New South Wales from ARTC for its alleged negligence in failing to provide, install and maintain a safe operating system co-ordinating safe procedures between all persons on the site, designed to ensure the safety of workers thereon.
Because it was in Victoria that he was injured, Mr Dollisson's claim (including any question of limitations) fell to be determined by reference to the law of Victoria (including, if applicable, the ACA) in accordance with John Pfeiffer v Rogerson (2000) 203 CLR 503; [2000] HCA 36 (Pfeiffer).
Mr Dollisson required an extension of time pursuant to s 27L of the Limitation of Actions Act 1958 (Vic) within which to bring his claim. An extension of time was granted by Harrison AsJ (the Associate Justice) and it is from this decision that an application for leave to appeal is made.
Both the decision at first instance and this application for leave to appeal turned on s 134AB(1) of the ACA which relevantly provides that "[a] worker who is, or the dependants of a worker who are or may be, entitled to compensation in respect of an injury arising out of or in the course of, or due to the nature of, employment on or after 20 October 1999" shall not, in proceedings in respect of the injury, recover damages for pecuniary or non-pecuniary loss except in certain specified circumstances. These circumstances include, inter alia, passing through what have been described as "gateways" which involve a non-curial assessment of the seriousness of the injury in respect of which damages are sought.
The precise issue for determination thus is whether or not the limitations on or prerequisites for the recovery of damages imposed by s 134AB(1) of the ACA apply to a worker who has received or is entitled to compensation under any statutory regime in respect of an employment related injury, or whether they apply only to an injured worker who has received or may be entitled to compensation under the ACA.
Competing contentions
The issue identified in [7] above is not raised by CR Rail (which was not a party to the underlying proceedings, although it was named as third respondent to the application for leave to appeal) but rather by ARTC.
ARTC contended that the Associate Justice should not have granted Mr Dollisson any extension of time on the basis that it was futile to do so. This was said to be because Mr Dollisson had not satisfied the steps which it was argued he needed to take before he could claim damages - namely, he had not been assessed under s 104B of the ACA as having a serious injury (see ss 134AB(2) and (15) of the ACA) nor had he, under s 134AB(4) of the ACA, made an application to and been certified by the Victorian WorkCover Authority or self-insurer (see s 134AB(16)) as having a "serious injury" (as defined within s 134AB(37)). In this context, it may be noted that it is settled law in Victoria that these steps need to be taken when a worker who suffers injury arising out of or in the course of his or her employment wishes to pursue a claim for damages against a non-employer defendant, such as ARTC, in respect of that injury: see Martin v Bailey (2009) 26 VR 270; [2009] VSCA 263 at [42] (Martin) and the cases there cited.
Mr Dollisson's riposte was that it was not necessary for him to take any of these steps since (as was common ground) he was not entitled to compensation under the ACA and that, as such, there was no need for him to demonstrate that he had suffered a "serious injury" within the meaning of that Act or had otherwise obtained certification that would allow him to claim damages, even if the injury did not rise to the prescribed 30% degree of impairment (see s 134AB(15)). In other words, it was put that the ACA's prohibition on seeking damages for pecuniary and non-pecuniary loss in s 134AB(1) did not apply to him.
ARTC's rejoinder was that the fact that Mr Dollisson was entitled to compensation (albeit under the NSW Acts) was sufficient, and that the restrictions imposed on receipt of damages pursuant to s 134AB(1) of the ACA were deliberately not confined to a case of entitlement to compensation under or in accordance with the ACA. ARTC contended that s 134AB(1) simply referred to a worker being "entitled to compensation" without specifying in terms, in contrast to other provisions of the ACA, that the compensation being referred to was compensation "under" or "in accordance with" the ACA.
It was submitted by ARTC that this point was free of authority, notwithstanding that the ACA and s 134AB and related provisions have been subject to extensive litigation in Victoria with a number of cases, some of which are referred to later in these reasons, coming before the Victorian Court of Appeal. (I note for completeness that nothing in the High Court's decision in Maurice Blackburn Cashman v Brown (2011) 242 CLR 647; [2011] HCA 22, which considered aspects of s 134AB of the ACA, appears to bear upon the question under consideration in the present case).
A review of the ACA, including its history and shifting policy underpinnings, makes it tolerably clear, in my opinion, that the Victorian legislature's failure to use the expression "under the Act" to qualify the reference to "compensation" in s 134AB(1) was not deliberate, and was certainly not designed to preclude, limit or condition the recovery of third party damages by a worker who was not entitled to compensation under the ACA.
Further, as will be seen, a number of decisions of Victorian courts, including the Court of Appeal, have either stated or proceeded on the basis that the reference to "compensation" in s 134AB(1) is a reference to "compensation under the ACA".
In my opinion, Mr Dollisson's failure to pass through the statutory gateways erected by the ACA does not stand in the way of his claim for damages and the Associate Justice's grant of an extension of time as sought by Mr Dollisson was not futile.
For the reasons that follow, in my opinion the reference to "compensation" in s 134AB(1) of the ACA is a reference to compensation "under the ACA" or "in accordance with the ACA", and nothing is to be read into the absence of those words in the section.
Legislative history
Major amendments to the ACA were introduced by the Kennett Government by s 46 of the Accident Compensation (WorkCover) Act 1992 (Vic). One of those changes was to introduce s 135A(1) in the following terms:
"A worker who is, or the dependants of a worker who are or may be, entitled to compensation in respect of an injury arising out of or in the course of, or due to the nature of, employment shall not, in proceedings in respect of the injury, recover any damages except in accordance with this section or section 135 (1)."
The 1992 amendments, of which s 135A was a critical component, were subsequently described by the Minister for Finance, RM Hallam, as involving the striking of a compromise such that (see Victorian Legislative Council, Parliamentary Debates (Hansard), 9 December 1997 at 1005):
"…while workers would be protected under a compulsory, no-fault scheme, those workers who had the misfortune to be 'seriously injured' (as strictly defined) would have the added right to take action at common law, on the basis that any settlement awarded by the court would expunge both their statutory right to compensation for the physical injury (under the table of maims) and any future entitlement to weekly benefits. The logic of that compromise was that for the profoundly injured, with little or no prospect of returning to work, a common-law settlement may represent a reasonable basis of 'capitalising' their weekly entitlement over the long term".
The expungement of the statutory right to compensation and the foregoing of any future entitlement to weekly benefits upon the receipt of an award of damages to which the Minister referred highlights, in my view, the fact that the Victorian legislature in 1992, in allowing for the compromise position to which s 135A(1) of the ACA gave effect, considered that damages were a limited alternative to compensation under the no-fault scheme introduced by the 1992 amendments, the limitation being (broadly speaking) conditioned by the requirement that a serious injury had been sustained by the injured worker.
In other words, the reference to "compensation" in s 135A(1) of the ACA as it stood in 1992 was a reference to compensation "under the Act".
It is plain that s 135A(1) of the ACA was the precursor to s 134AB(1) which, for present purposes, is expressed in materially identical language. So much was observed by the Victorian Court of Appeal in Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622; [2005] VSCA 33 at [14] (Barwon Spinners); see also Georgopoulos v Silaforts Painting Pty Ltd (2012) 37 VR 232; [2012] VSCA 179 at [30] (Georgopoulos). That having been said, it is desirable to follow through the legislative history that led to the introduction of s 134AB into the ACA in 2000.
Section 135A(1) of the ACA, as introduced in 1992, was amended by s 47(1) of the Accident Compensation (Miscellaneous Amendment) Act 1997 (Vic) so as to be limited to injuries arising prior to 12 November 1997. That Act ushered in a comprehensive statutory benefits scheme, similar to the accident compensation regime in New Zealand, which excluded any common law recovery. Subject to a very limited exception connected with the Transport Accident Act 1986 (Vic), s 134A(1) of the ACA, as introduced by s 45 of the Accident Compensation (Miscellaneous Amendment) Act, provided that:
"A worker who is, or the dependants of a worker who are or may be, entitled to compensation in respect of an injury arising out of or in the course of, or due to the nature of, employment on or after 12 November 1997 shall not, in proceedings commenced in respect of the injury or otherwise, recover any damages of any kind."
The drafting of this section plainly derives from s 135A(1) of the ACA, and what I have said about that section and the meaning of "compensation" in it (at [19]-[20] above) applies equally to s 134A(1) and the meaning of the word "compensation" as used in that section.
Further, and especially in light of authorities such as Potter v Minahan (1908) 7 CLR 277 at 304; [1908] HCA 63; Balog v Independent Commission Against Corruption (1990) 169 CLR 625 at 635-636; [1990] HCA 28; Coco v R (1994) 179 CLR 427 at 437; [1994] HCA 15; Electrolux Home Products Pty Ltd v Australian Workers' Union (2004) 221 CLR 309; [2004] HCA 40 at [21]; and Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364 at 373 [23]; [2006] HCA 32, which require very clear legislative language where common law rights are being curtailed, I would be loath to attribute to the Victorian legislature an intention to proscribe the recovery of common law damages of any kind by an injured worker on the basis that he or she was entitled to some compensation, however inadequate or negligible, under the compensation regime (perhaps chronically underfunded) of some other state or territory.
Far more likely, in my opinion, especially bearing in mind that s 134A(1) amounted to an abrogation of the common law right to damages, is that the Victorian legislature introduced the amendments in circumstances where it knew and could control what compensation was available to an injured worker under the comprehensive no fault statutory compensation scheme that was established in Victoria.
In this respect, the Victorian legislature has no control over the levels of compensation available to workers in other states or territories or, to put it more precisely, workers whose employment is not connected with Victoria. There is no guarantee or necessary likelihood that the levels of available compensation will be the same from state to state, and they may be affected by a host of considerations, including complex actuarial modelling. By contrast, it is understandable that the Victorian legislature would seek only to control and limit the availability of damages to a worker who has received or is entitled to receive compensation under the ACA, especially in circumstances where damages awards against employers are indemnified by the Victorian WorkCover Authority, pursuant to the Accident Compensation (WorkCover Insurance) Act 1993 (Vic) s 7.
Returning to the tortured legislative history of the ACA, the radical amendments effected in 1997 were to be short lived and the Accident Compensation (Common Law and Benefits) Act 2000 (Vic), passed following a change of government, introduced a new Division 8A into the ACA which restored, in a qualified way, a worker's right to common law damages in circumstances where, putting the matter broadly, the worker had sustained a "serious injury". That concept supplied the "gateway" to the recovery of common law damages and, in this respect, played a conceptually similar role to that which had originally formed part of the 1992 Act, although there were important changes to what was described as the "narrative test" for "serious injury" in the 2000 amendments: Barwon Spinners at [2].
Section 134AB(1) of the ACA, with which the Court is concerned in the present case, was inserted upon the introduction of Division 8A. It related to injuries arising out of or in the course of or due to the nature of employment "on or after 20 October 1999", this expression qualifying the concept of employment, and not injury: Barwon Spinners at [11]−[13].
Section 134A was amended by s 21 of the 2000 amendments, so that its operation was confined to workplace injuries arising from employment after 12 November 1997 but before 20 October 1999. It remained part of the ACA however and, like s 134AB(1), refers to "compensation" without specifying that the reference is to compensation "under the ACA" or "in accordance with the ACA", as opposed to compensation at large.
In the Second Reading speech for the 2000 amendments to the ACA, Mr Cameron, the Minister for WorkCover, said in respect of s 134AB (see Victorian Legislative Assembly, Parliamentary Debates (Hansard), 13 April 2000 at 1010):
"New sections 134AA and 134AB reinstate the right of an injured worker who is or may be entitled to compensation under the Accident Compensation Act 1985 in respect of an injury arising out of or in the course of or due to the nature of employment to recover damages in respect of the injury subject to limitations and conditions imposed by the sections as to date of injury, the application of the Transport Accident Act 1986, whether or not the injury is a serious injury within the meaning of section 134AB, the classes and amounts of damages which may be recovered, the discretion of the court to order costs and procedural requirements, including time limits." (emphasis added).
This passage is plainly inconsistent with ARTC's argument in the present case. It is permissible under s 35 of the Interpretation of Legislation Act 1984 (Vic) to have regard to reports of proceedings in any House of Parliament to arrive at a construction that would promote the purpose or object of an Act, in preference to one that would not. The use by the plurality of the High Court of legislative history and extrinsic materials in the form of a Second Reading speech to support a particular construction of s 10(1A) of the Police Regulation (Superannuation) Act 1906 (NSW) in SAS Trustee Corporation v Miles (2018) 361 ALR 206; [2018] HCA 55 at [33] and [36] may also be noted in this regard.
The ACA has engendered judicial frustration in Victoria for its lack of linguistic coherence. Marks J put it graphically in Robart v Matchplan Pty Ltd (in liq) (Victorian Court of Appeal, 21 December 1993, unrep) (Robart), a case which considered the amendments to the ACA which had been introduced in 1992. His Honour said:
"[u]nfortunately, inconsistent use of words and phrases, imprecise expression and failure to state clearly what is intended on important topics are historic characteristics of the Act which have been maintained, with some assiduity, in the provisions which we are now obliged to construe".
In the same case, Fullagar J referred to the "studied obscurity which is characteristic of this scandalously opaque statute".
These observations are relevant to ARTC's resort to expressio unius reasoning (see further at [44]-[52] below).
It is not without significance that Marks J in Robart used the expression "compensable injury" as "an injury in respect of which a worker was or is entitled to compensation under the Act whether before or after amendment" (emphasis added). His Honour used that expression in the following part of his judgment which is consistent with an understanding of the unqualified word "compensation" in s 135A(1) and, by extension, s 134AB(1) as meaning compensation "under the ACA" or "in accordance with the ACA":
"In summary, before the 1992 Act a worker who suffered a compensable injury could claim damages at common law whether injured in a transport accident or at work. If he were injured in a transport accident he was not affected by the restriction in s135(1) of the Act even if the accident was a cause of a work journey injury. However, if the worker were injured in a transport accident his or her claim for damages at common law was barred by the TAA [Transport Accident Act 1986 (Vic)] unless he or she suffered a serious injury. If a serious injury was involved, then the recoverable damages were not restricted to non-pecuniary loss. The worker could also claim pecuniary loss subject to limitations (with which we are not here concerned).
This background assists an understanding of the amendments effected by s46 of the 1992 Act. It is common ground that one consequence of them is that the common law rights of victims of work related accidents are brought into line with those of victims of transport accidents. Since 1 December 1992, a worker who suffers a compensable injury is only entitled to recover damages at common law if the injury is a serious injury."
This understanding was echoed more explicitly in the decision of Maxwell P (with whom Redlich JA agreed) in Martin. At [18], the President observed:
"The prohibition on proceedings at common law applies to 'a worker who is ... entitled to compensation in respect of an injury arising out of or in the course of ... employment.' The manifest policy of s 134AB (and its predecessor provisions) is that a person who is entitled under the Act to compensation in respect of a work-related injury may not bring proceedings at common law in respect of that injury. Subject to the exceptions in s 134AB, the bar on proceedings at common law is co-extensive with the entitlement to compensation under the Act. Section 82(1) of the Act provides:
'If there is caused to a worker an injury arising out of or in the course of any employment, the worker shall be entitled to compensation in accordance with this Act.'" (emphasis added).
The word "co-extensive" reflects the policy "quid pro quo": subject to exceptions, compensation under the Act was available to injured workers in lieu of common law damages. Thus, in Martin at [21], the President said:
"As already noted, the prohibition on common law proceedings is the reflex of the entitlement to compensation under the Act. Without exception, the decisions under consideration are concerned with the scope of the entitlement, not with the scope of the prohibition. That is, the court or tribunal has been concerned with the question whether the worker (or in the case of death, his/her dependants) can successfully bring the circumstances of the injury or death within the entitlement provisions for workers compensation. The decisions are directly on point nonetheless." (emphasis added).
Expressio unius reasoning and the ACA
ARTC's argument had, at its fulcrum, the varying usage in the ACA of the word "compensation". Whilst it is correct, as ARTC submitted, that in contrast to s 134AB(1), the phrase "compensation under" or "in accordance with this Act" appears in a number of other provisions of the ACA (see, for example, ss 4(4), 5AA(2), 80(1) and (8), 82(6) and (8), 82C(1), 84B(1) and (2), 85(1), (4), (5) and (6), 86(1), 88(1), 91(3AAA), 91A(1), 92D(4) and (5), 97(4) and (4B), 98A(1), 99A(1), 103A(1), 114F(3), 116, 117, 123B, 125(4), 125A(5), 129D(4), 129N(1), 130(1)(c) and 138B(1) and (3)), there are many sections where the word "compensation" is used without any explicit qualification that it is a reference to "compensation under this Act" (see, for example, ss 3(d), 82(2A), 82(2B), 82(3C), 82(3), 82(4), 92(1), 92A(3), 92B(2), 93, 98C(1), 98E(1), 99(1), 125(1), 125A(1)&(2), 125B(1), 126(3), 127(1)) but where the simple reference to "compensation" must, in context, be a reference to compensation under the ACA.
Reference has already been made in [36] above to the objects clause of the ACA. Section 3(d) of the ACA is an example of a section where the simple reference to "compensation" in the object "to provide adequate and just compensation to injured workers" must be a reference to compensation "under the ACA", even though words to that effect are not used. (The subsequent amendment to s 3 by the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) s 624(1) which replaced the words "adequate and just compensation to injured workers" with "appropriate compensation… to injured workers in the most socially and economically appropriate manner" does not alter this position).
The provision of compensation, moreover, is a matter that is prima facie to be understood as a matter "in and of Victoria": Interpretation of Legislation Act s 48(b). Compensation provided in Victoria is compensation under the ACA.
Expressio unius reasoning of the kind sought to be invoked by ARTC attributes a rigorous linguistic logic and consistency to the author of the statute or instrument under consideration. Such characteristics, whilst not unattainable, are far from inevitable, especially when the authorship of a frequently amended statute undoubtedly changes over time and where it may be that amendments to existing Acts or the passage of new bills are subject to last minute political debate and compromise cf. Construction, Forestry, Mining and Energy Union v Hadgkiss (2007) 169 FCR 151; [2007] FCAFC 197 at [15]. "Patchwork" statutes, to borrow Lord Hoffmann's language in National Grid Co plc v Mayes [2001] 1 WLR 864 at [55] (Mayes), rarely contain the linguistic logic and consistency upon which the expressio unius maxim depends for it to operate as a useful construction tool. His Lordship described such arguments as "often perilous": Mayes at [55].
In this regard, the ACA is a statute that has, as has been illustrated, grown "like topsy", coinciding with changes of government and changes of policy in Victoria in relation to the ambit and quantum of benefits available to injured workers. The amendments made to the ACA since the 1990s have been extensive and often of byzantine complexity.
Even though, as I have noted, s 134AB with which the Court is concerned in the present case was not introduced into the ACA until passage of the Accident Compensation (Common Law and Benefits) Act as part of a new Division 8A concerned with actions in respect of injuries arising on or after 20 October 1999, many of the sections that were referred to by both parties in their written submissions (see [44] above) predated the introduction of that section. The observations of both Fullagar and Marks JJ in Robart, which I have set out at [31] above, therefore bear upon the utility of resort to expressio unius reasoning in the present case. Moreover, in that case, their Honours were grappling with s 135A which, as I have pointed out at [21] above, employed the same language as was subsequently adopted in s 134AB of the ACA.
ARTC's attempt to draw assistance from expressio unius reasoning in relation to the ACA is, in my opinion, fraught with hazard. As has famously been said, that maxim, whilst it may be a "valuable servant", can be a "dangerous master": Colquhoun v Brooks (1888) 21 QBD 52 at 65; see also Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543; [2002] HCA 49 at [34] and the cases there cited; see also P Herzfeld and T Prince, Interpretation (2nd ed, 2020, LawBook Co, forthcoming) at [6.120]-[6.130].
As a unanimous High Court said in Houssein v Under Secretary, Department of Industrial Relations and Technology (NSW) (1982) 148 CLR 88 at 94; [1982] HCA 2, the maxim "must always be applied with care, for it is not of universal application and applies only when the intention it expresses is discoverable upon the face of the instrument".
For the reasons set out above, the maxim cannot be reliably invoked in the present case.
Case law
The view that "compensation" as referred to in s 134AB(1) is to be understood as a reference to compensation "under" or "in accordance with" the ACA is also supported by two further decisions of the Victorian Court of Appeal, in addition to Robart and Martin that have been referred to at [31]-[35] above.
In Georgopoulos, the Court said (at [46]−[47]):
"Section 134AB(1) first defines the class of persons to whom it applies by reference to those who are or may be entitled to compensation in respect of an injury arising out of or in the course of or due to the nature of employment on or after 20 October 1999.
This is a reference back to s 82(1) of the Act.
'If there is caused to a worker an injury arising out of or in the course of any employment, the worker shall be entitled to compensation in accordance with this Act.'"
Earlier, in Grech v Orica Australia Pty Ltd (2006) 14 VR 602; [2006] VSCA 172, Chernov JA said (at [2]), referring to Barwon Spinners, that:
"[i]n that case the Court made it plain that the plaintiff must identify the compensable injury (in respect of which he or she claims there is an entitlement to compensation under the Act [Accident Compensation Act 1985 (Vic)] and establish that it occurred on or after 20 October 1999)."
It is also relevant to refer to the decision of Beach J (as his Honour then was) in Rogers v State of Victoria [2011] VSC 298 (Rogers) which involved a claim for damages by a plaintiff who was injured at the Mildura Court Complex whilst performing jury service. Section 55(1) of the Juries Act 2000 (Vic) provided that if a person suffered personal injury arising out of or in the course of jury service, compensation was to be paid in accordance with Part 8 of the Juries Act. Section 55(4) of the Juries Act provided that:
"The person to whom or for whose benefit compensation is payable are those persons to whom or for whose benefit compensation would be payable under the Accident Compensation Act 1985 or the Workplace Injury Rehabilitation and Compensation Act 2013 if -
(a) the person attending for jury service were a worker within the meaning of that Act; and
(b) the personal injury were caused in the person's employment arising out of or in the course of the employment."
It was contended by the defendant in Rogers, the State of Victoria, that Ms Rogers was not entitled to recover damages in the proceedings because of her failure to comply with the "serious injury requirements" contained in s 134AB of the ACA. Beach J rejected this argument for a number of reasons, the first one of which (at [29]) was as follows:
"The short answer to the defendant's defence that the plaintiff has not satisfied the serious injury requirements contained in s 134AB of the Accident Compensation Act, is that those requirements do not apply to the plaintiff. First, by the terms of s 134AB(1) and (2), the serious injury requirements are only engaged in cases where a worker is or may be entitled to compensation under the Accident Compensation Act in respect of an injury arising out of or in the course of, or due to the nature of, employment on or after 20 October 1999. That description does not apply to the plaintiff in this case." (emphasis added).
Senior Counsel for ARTC submitted that Rogers was not directly relevant for present purposes because a juror was not a "worker" and because the Juries Act had an historically different purpose to the ACA. Further, he submitted that ss 55(7), (8) and (9) of the Juries Act made it "clear that what is being received is not compensation but an emolument, which is regarded to be treated as close as possible to what the Accident Compensation Act allows for workers". That last submission is difficult to reconcile with the legislature's express use of the term "compensation" in ss 55(8) and (9) of the Juries Act.
Further, whilst it is true that part of Beach J's reasoning that s 134AB of the ACA did not apply to Ms Rogers derived from an analysis of s 55 of the Juries Act, the first answer his Honour gave to the submission that s 134AB(1) and (2) applied to Ms Rogers was, as I have already set out at [57] above, that it did not because she was not a recipient of compensation under the ACA.