Again, it may be seen that the application of these provisions to the Appellant depends upon whether he falls within the meaning of the term "worker" as defined in the 1998 Act.
24 The focus of the debate has tended to be upon the definition of the term "worker", no doubt because the relevant deeming provisions were originally found immediately following the definition of "worker" in s 6 of the 1926 Act. It has been accepted that inherent in these deeming provisions must be correlative concepts with respect to "employer" and "employment", these concepts being inherently interrelated. However, the provisions of the legislation have at all times involved a central concept of "injury". Relevantly for present purposes, that word was defined in the 1926 Act, and is still defined, in s 4 of the 1987 Act, to mean "personal injury arising out of or in the course of employment": see also s 4 of the 1998 Act. It follows that whenever the legislation refers to an entitlement to compensation in respect of an injury or to damages in respect of an injury, it will be necessary to consider the meaning to be given to "employment" in the particular context. That focus is reflected in the heading of Schedule 1 which has, since it was introduced in the 1987 Act, referred to "deemed employment of workers". It is also reflected in the fact that Schedule 1, clause 1 was actually taken, not from the extended definition of a "worker" in s 6 of the 1926 Act, but from the definition of "employer" in that Act.
The question of statutory construction
25 Before turning to the arguments which were found persuasive in the authorities, it is permissible, once it is accepted that existing authority may be revisited, to address the question of statutory construction as a matter of principle.
26 The Appellant presented a number of arguments in favour of the proposition that the deeming provisions in Schedule 1 of the 1998 Act operate only for the purposes of determining awards of statutory compensation. The first argument relied upon the history of the legislation. Because, as noted above, these provisions were introduced into the legislation at a time when there was no statutory interference with a worker's right to claim common law damages, their effects were entirely beneficial to the worker. In those circumstances, the use of the phrase "for the purposes of this Act" which occurred in s 6(3A) of the 1926 Act, at a time when s 63 expressed an intention not to affect any civil liability or right existing independently of the Act, was clearly limited to a beneficial extension of the scheme for compensation.
27 That, it was contended, remained the purpose and intent of the deeming provisions, even after restrictions were imposed on claims for common law damages. That conclusion should be inferred from the fact that no relevant changes were made to Schedule 1 of the 1987 Act when the amendments to Part 5 were introduced.
28 That argument was supported by reference to numerous provisions in the deeming provisions in Schedule 1 which referred to "compensation payable under this Act" and the total absence of provisions referring to general law damages: see in Schedule 1 to the 1998 Act, clauses 3(5), 4(3), 5(2), 8(2) and 13(2).
29 This construction was supported by the inclusion, in s 151, of a limitation on affectation of liability that exists independently of the 1987 Act, except to the extent that the Act "otherwise expressly provides". There was, so it was contended, no express provision that any limit was to be placed on claims by independent contractors in relation to work-related injuries, merely because those contractors were deemed to be workers for the purposes of obtaining compensation. Even if an inference to that effect could be drawn, which was rejected, an inference would not survive the requirement of express provision in s 151. If that were correct, it would presumably flow as a matter of practical application of a coherent scheme, that the extended meaning of "worker" should not be adopted for the purposes of Chapter 7, Division 6, of the 1998 Act.
30 The alternative analysis must commence by conceding the historical operation of the extensions to the definition of "worker" in the 1926 Act and the 1987 Act. Nevertheless, Part VIII of the 1926 Act dealt with common law remedies and there was no reason to exclude from the operation of those provisions the extended meaning given to workers and employers by s 6. As already noted, the express terms of s 65(3) tended to contradict any such implied restriction.
31 If the contrary view is to gain any traction, it must operate from the commencement of the 1987 Act, when common law remedies against an employer were abolished. However, s 149(1), as originally enacted, abolished such rights to damages "in respect of an injury to the worker for which compensation is payable under this Act by that employer". It is difficult to discern any basis for an inference that the abolition applied to some persons entitled to compensation under the Act but not to others. At that time, there was no equivalent of s 63 of the 1926 Act, disallowing an intention to interfere with general law rights. That omission was understandable. Nevertheless, s 151 maintained, in sub-s (4), an express exception in relation to persons deemed to be employers. There is no obvious basis to assert that, when enacted, the 1987 Act intended to preserve unqualified rights to make claims for damages under the general law to a particular category of workers who are entitled to compensation, namely those who were deemed to be workers by virtue of Schedule 1.
32 Once the last step is taken, it is difficult to understand on what basis the use of the term "worker" might obtain a more restrictive operation upon the restoration in part of common law damages, as expressly "modified" by the 1987 Act, from 1989. If deemed workers had been deprived of those rights in 1987, the new scheme must surely have applied to them from 1989.
33 The only other change of significance was the separation of the legislation into two parts by the enactment of the 1998 Act. However, it is clear from the express inter-relationship accorded to the two Acts, that no different operation can be accorded to the definitional provisions because they now appear in the 1998 Act.
34 The fact that Schedule 1 provisions relating to deemed employment are replete with references to the effects in relation to compensation is explained by the history. It is not inconsistent with the intention that changes in relation to common law rights were intended to operate with respect to all those entitled to compensation payable under the Act.
35 Finally, it is significant that the definition of deemed employment is now, and always has been, found in a definition section which operates with respect to the whole of the Act and not in relation to any particular Part or Parts. Accordingly, when new provisions were introduced using defined terminology, it must be assumed that the drafter understood and intended that those general definitions would apply, unless expressly varied, in circumstances where there was no clear contrary intention which would impliedly exclude their operation.
36 On that analysis of the legislation, the appeal must fail. However, it is necessary to see if any authority binding on this Court, or authority of this Court which cannot be said to be clearly wrong, would lead to a different conclusion.
Relevant caselaw
37 The argument on the appeal not only sought to reopen the decision in OP Industries, but also asserted that the conclusion reached in that case was not open because of the reasoning of the High Court in Crowley. Alternatively, the conclusion should not have been reached because of earlier authority in this Court. To address these contentions, it is convenient to deal with the authorities chronologically.
38 The Sydney Turf Club v Crowley (1972) 126 CLR 420 involved, indirectly, an injury to a stablehand employed by a horse trainer while "riding work" at Canterbury Racecourse. The racecourse was managed by the appellant Club. Although it was not the employer of the stablehand, the Club was liable to pay compensation pursuant to s 6(10) of the 1926 Act. It was also found liable in damages under the general law. The Club had two insurers, being the Government Insurance Office of New South Wales ("the GIO") and the Australian Jockey Club ("the AJC"). The GIO had issued the Club a public liability insurance policy, which did not extend to claims in respect of injury to any person "arising out of or in the course of the employment of such person in the service of the insured". The AJC policy covered both compensation and damages in respect of persons who were or were deemed by the 1926 Act to be workers of the Club. The GIO paid the claim and then sought, claiming a right by way of subrogation, to recover from the AJC. As noted by Barwick CJ, with whom Walsh J and Stephen J agreed, the case turned upon the construction of the policy issued by the GIO and in particular whether the exception covered deemed employment under the 1926 Act. His Honour continued (p 424-5):
"The extension of the definition of a worker to include a stablehand riding work on a racecourse operated by a racing club is made by the Workers' Compensation Act 'for the purposes of the Act'. Such a person is deemed for the purposes of the Act to be a worker employed by the racing club. But the stablehand is not required to be treated as a worker in the employ of the racing club for any other purpose. Thus s 6(10) of the Workers' Compensation Act will not itself make the stablehand riding work for a horse trainer, a worker in the employ of the racing club within the meaning of the policy."
39 The stablehand in Crowley did not sue the Club as its deemed employee, but as an invitee at the racecourse: p 423. There was no suggestion that his cause of action in damages was in any way affected by the 1926 Act. The case is authority for the proposition that the deeming provision in the 1926 Act did not affect the operation of the policy which was not a statutory policy under the 1926 Act, so that a reference in the exception to "the course of employment" did not necessarily include deemed employment. As the Chief Justice noted, the purposes of the Act did not include the meaning of the policy. The case has nothing to say on the issue of whether, in the current context, "the purposes of the Act" are limited to the scheme for payment of compensation and do not extend to restrictions on common law damages.
40 The phrase "for the purposes of this Act" appears in a number of provisions outside Schedule 1 where it does not necessarily encompass all other provisions of the Act. Hobbs v Costain Australia Ltd (1995) 11 NSWCCR 56 (Cole JA, Kirby P and Handley JA agreeing) was a case dealing with industrial deafness, where the plaintiff was held to have suffered an injury for which he had a complete cause of action prior to the commencement of the 1987 Act. As enacted, s 149 abolished the worker's right to sue his or her employer in respect of an injury to the worker for which compensation was payable, being "an injury received by a worker before the commencement of" that section: see the 1987 Act, Schedule 6, Part 14, clause 1. However, s 17(1) provided that in the case of gradual hearing loss, the injury was deemed to have happened at the time when notice was given, or if the worker was not still employed at that time, on the last day of such employment. Although that deeming provision was expressed to operate "for the purposes of this Act" the provision was found in Part 2 dealing with liability to pay compensation. To have applied it in relation to common law claims would not have achieved consistency of operation, but rather would have achieved an anomalous result, whereby one category of injured workers (those suffering industrial deafness) would retrospectively lose their common law damages claims on the commencement of the 1987 Act, whereas others who had received injuries prior to the commencement of the Act would not. Similarly, after the 1989 amendments, that category would have been restricted to modified common law damages for pre-1987 injuries, whereas others would not. For that reason, the Court accepted that the operation of s 17 was restricted to rights to compensation. Accepting that reasoning in relation to the operation of s 17, it nevertheless provides limited assistance in construing the phrase "for the purposes of this Act" where it appears in a general part of the Act and in circumstances where applying it generally would not create internally anomalous results.
41 Shortly thereafter, on 29 August 1995, this Court handed down judgment in two related cases, Western Sydney Regional Organisation of Councils Group Apprentices v Statrona Pty Ltd and Commercial Union Workers' Compensation NSW Ltd v Hannaford (unrep, Mahoney AP, Meagher and Sheller JJA). Although Meagher JA was later to renege on his agreement with Sheller JA, in OP Industries, the majority judgment in Statrona was that of Sheller JA, Meagher JA agreeing. The worker involved in the proceedings, Mr Hannaford, was employed by the appellant, WSROC, as an indentured apprentice. He was placed by WSROC with Statrona, where he was working at the time of the accident. The trial judge found that Statrona had breached its duty to provide a safe working environment, but that WSROC was not negligent. By the time of the appeal, the contending parties were WSROC, Statrona and Statrona's workers compensation insurer, Commercial Union, and an insurer from which it had a policy of general insurance, Mercantile Mutual. The injury occurred three months before the commencement of the 1987 Act and accordingly was subject to the provisions of the 1926 Act. Pursuant to s 6(1) of the 1926 Act, WSROC was deemed to continue to be the employer of a worker temporarily lent to another person whilst under contract of apprenticeship, and accepted liability to pay compensation to Mr Hannaford. The two questions which then arose were whether Statrona and Mr Hannaford had a contractual arrangement which would amount to employment under the general law and whether WSROC had agreed to take out insurance which would cover Mr Hannaford during his time with Statrona, not only in relation to compensation, but also in relation to damages. Mahoney AP took a different view from the majority as to whether there was a contract which extended to common law damages claims brought by apprentices, between WSROC and Statrona. However, neither this, nor the other questions in relation to the coverage of the various insurance policies depended upon any specific construction of the 1926 Act.
42 The next case was OP Industries Pty Ltd v MMI Workers Compensation (NSW) Ltd (1998) 17 NSWCCR 193, which was concerned with an accident suffered on 20 March 1990, after the commencement of the 1987 Act and the 1989 amendments with respect to common law damages.
43 The facts of OP Industries were not dissimilar to those of Statrona. Although he had been in the employ of OP Industries Ltd for a period, the injured worker, Mr Ward, undertook an apprenticeship with Central West Group Apprentices Ltd, an organisation similar to WSROC which arranged for him to complete a plumbing course and then placed him with OP Industries to continue his apprenticeship. Following an injury, whilst working with OP Industries, he sued both Central West and OP Industries for damages. The trial judge held that, applying the deeming provision in Schedule 1, clause 1 of the 1987 Act, Central West was the employer and OP Industries was not. The Court, for reasons given by Fitzgerald AJA (Beazley JA agreeing), dismissed the appeal. The reasoning of the majority appears to have turned on two propositions, the first of which was that Central West had "temporarily lent or let on hire" Mr Ward's services to OP Industries, which would not terminate his employment with Central West: 17 NSWCCR 193 at [23]. The second limb was a rejection of the argument that the deemed employment in Schedule 1, clause 1, being "for the purposes of this Act", related only to statutory compensation. Meagher JA, in dissent, accepted the appellant's argument that the deeming provision was not determinative, and that it was "intended to assist an injured worker to know which of several potential 'employers' is liable to pay him compensation under the Act": at [9]. That conclusion led his Honour to consider which company was the worker's employer, in accordance with general law principles.
44 Perhaps because of the way the case was argued, the reasoning in both judgments is based on a dichotomy which is arguably false and in any event demonstrates the irrelevance of the case for present purposes. Thus, OP Industries sought to argue that it was the worker's employer, contrary to the deeming provision, so as to obtain the benefit of the statutory constraints on common law damages. In the present case, the worker seeks to argue that the deemed employer is not the employer for the purposes of the statutory controls over damages. It is arguable that the majority approach was wrong in OP Industries, not because it held that deemed employment fell within the statutory constraints on damages but because it held that identification of the employer for the purposes of the general law was constrained by the deeming provision. It would have been sufficient to support the conclusion reached by Meagher JA to conclude that the deeming provision did not apply to the determination of which company was the employer for the purposes of general law damages, that not being a purpose of the Act. His Honour did not need to go further and state that the deeming provision only applied to the compensation scheme under the Act. Thus, the reasoning in OP Industries appears to be based on an assumption that if the deeming provisions apply to the constraints on common law damages, they must also apply to the cause of action for the purposes of common law damages claims. In my view, that assumption is false. The statutory limitations imposed on claims for damages do not depend on employment according to general law principles.
45 The next case referred to was University of New England v Larsen-Walsh [2000] NSWCA 363. That case stood for all relevant purposes, on the same basis as Hobbs. It was concerned with a progressive injury (chemical sensitivity, not loss of hearing) in relation to which s 16 of the 1987 Act identified the date on which the injury was deemed to have happened, which was after the commencement of the 1987 Act. The construction adopted in Hobbs was applied on the basis that ss 16 and 17 were not distinguishable from each other: see Handley JA (Spigelman CJ and Sully J agreeing) at [11] and [12].
46 National Transport Insurance Ltd v Chalker [2005] NSWCA 62 involved injury to a driver using heavy moving equipment, caused by the negligence of another driver. Both worked for a company, Rex J Andrews Pty Ltd, but were independent contractors and not employees, according to general law principles. The appellant, which was the insurer of the negligent driver, sought to demonstrate an employment relationship by reliance upon the deeming provisions in Schedule 1, clause 2(1) of the 1998 Act, being the same deeming provision as that engaged in the present case. Reliance was placed by the appellant on OP Industries. Because the appellant was entitled to succeed on a different issue, Mason P (with whom Tobias JA and Grove J agreed), did not determine that claim, noting that it involved "difficult issues" and also noting that he had "reservations about the correctness of OP Industries": at [75].
47 A month later, Tobias JA delivered an ex tempore judgment in Kotevski v Esselte Australia Pty Ltd [2005] NSWCA 126 (Young CJ in Eq and Brownie AJA agreeing). The case was similar to Hobbs and University of New England, in that it involved a condition having a gradual on-set. Proceedings were commenced on 22 November 2001 and, applying the statutory limitation contained in s 151D of the 1987 Act, the trial judge considered whether any part of the injury had been suffered within a three year period, namely after 22 November 1998. His Honour held that it had not. In this case, it was the claimant who sought to engage the provisions of s 15, in Part 2 of the 1987 Act, because his incapacity arose on 13 August 1999 (within the three year period) and s 15(1)(a) deemed the injury to have happened at the time of the worker's incapacity. If successful, the claimant would have obtained modified common law damages; if unsuccessful, he received no damages. In reliance upon Hobbs and University of New England, the Court rejected the argument that the deeming provision in s 15, stated to be "for the purposes of this Act", extended to provisions modifying common law remedies in Part 5 of the 1987 Act, and accepted that the deeming provision was relevant only to a claim for compensation under Part 2. To the extent that the claimant sought to invoke the decision in OP Industries, his Honour held that the context in which s 15 was found was "entirely different" and the case was thus distinguishable: at [30]. His Honour also noted a submission that OP Industries was wrongly decided and stated:
"In my opinion there would also be substance in that submission. Consideration of the various provisions of Schedule 1 to the Act which relate to 'deemed employment of workers' reveal that their context is the deeming of an employer in circumstances where compensation is payable under the Act: see clauses 3(5), 4(3), 5(2), 8(2) and 13(2)."