Foster & Anor v Cameron [2011] QCA 48

[1] MARGARET McMURDO P: This case highlights difficulties arising from the construction of Ch 5 Pt 10 Workers' Compensation and Rehabilitation Act 2003 (Qld).[1] The pertinent statutory provisions and the difficulties arising from them on the facts of the present case are set out fully in Chesterman JA's reasons. I agree with Chesterman JA that the appeal should be dismissed. The primary judge rightly included in the judgment sum awarded in favour of the respondent, Donald Cameron, an amount of $13,495.00 for his future need to employ a lawn mowing contractor.

[2] The present effect of s 308C and s 308E of the Act is as follows. A worker performed services before a work-related injury, say, lawn mowing. The worker is no longer able to perform those services because of the injury (s 308C). A worker needs services because of a work-related injury which were not needed prior to the injury, say, regular dressing of re-occurring ulcerated wounds resulting from the injury (s 308E). In either of those cases, the worker receives the services and can afford and does pay for them. Under s 308C or s 308E (whichever applies) the worker will receive damages for the costs of those services both before trial and into the future. But say the worker in either of those circumstances is impoverished, perhaps because of the work-related injury, cannot afford to pay for the necessary services, and instead they are provided by compassionate family or friends. Under

s 308C or s 308E (whichever applies) the worker can receive no damages for the costs of those services in the future. This is so even if the compassionate family and friends providing the services in the past are, or may become, unable or unwilling to continue to provide the future services. This situation appears so unjust it may be that, in enacting s 308C and s 308E in their present form, the legislature has not effected its real intention.

[3] It is the construction of s 308C which is relevant in this case. If the construction urged on this Court by the appellants is correct, the following would apply. Say a worker mows his own lawn every few weeks. He suffers a work-related injury and as a result can no longer mow his lawn and will probably never be able to again. He pays a mowing contractor to do this for him on a regular basis. The mowing contractor takes holidays twice a year. On two occasions before the worker's action for damages is determined, the contractor is unable to mow the worker's lawn. The worker's adult son insists on mowing his father's lawn and refuses to accept any payment for his work. The son and his wife work full-time and have young children. The son has a history of back problems and is soon to be transferred interstate. He is unable to regularly assist his father with mowing in the future. On the appellants' construction of s 308C, the worker would be prevented from receiving any damages for the cost of the future lawn mowing which he needs as a result of the accident simply because, on two occasions before trial, the mowing was provided to the worker gratuitously.

[4] This is not what the words in s 308C state. In the absence of the clearest of terms, I cannot conclude that parliament intended s 308C to have this peculiar and unjust result. I agree with Chesterman JA that s 308C should be construed as not operating to prevent the court awarding damages, either to the worker in my hypothetical scenario in the preceding paragraph, or to the respondent in this case. I agree with Chesterman JA's observations that s 308C, and, I add, s 308E, may need amendment to prevent injustice and to reflect the legislature's real intention.

[5] I also agree with the orders proposed by Chesterman JA.

[6] CHESTERMAN JA: The respondent sued the appellants, his employers, for damages for injuries sustained in the course of his employment. Liability was admitted and on 29 September 2010 Douglas J gave judgment for the respondent for $434,715.16. Included in the judgment sum was an amount of $13,495.00 awarded in respect of the respondent's need, created by his injuries, to employ a man to mow his lawn.

[7] The employers' insurer appeals only against this component of the award, despite the modesty of the amount, identifying a point of principle it wishes clarified for future cases.

[8] The respondent suffered a significant aggravation of a pre-existing disease in the discs of his cervical spine. The injury caused severe restrictions in the respondent's movement of his upper body and shoulders. As well he became depressed. He was left with much diminished capacities for physical activity. Of particular relevance he was unable to mow the lawn of his suburban block. A fair inference from the evidence is that it was a task he had performed regularly before his injury. In the period between injury and trial his lawn was mowed mostly by his son and grandchildren but when they were unavailable he employed a "lawnmower fellow, Max" whose charge for each service was $50.

[9] The respondent engaged Max on only seven or eight occasions in the period, just short of three years, between injury and trial.

[10] The appellants do not quarrel with the quantum of this part of the award. The contention is that the respondent had not demonstrated an entitlement at law to damages for his lost ability to mow his own law.

[11] The appellants submit that the award was precluded by the provisions of Part 10 of the Workers' Compensation and Rehabilitation Act 2003 ("Compensation Act") inserted by s 57 of the Workers' Compensation and Rehabilitation and Other Acts Amendment Act 2004. The relevant section is 308C. It provides:

"(1) This section applies if, before the worker sustained the injury, the worker usually performed particular services.

(2) A court cannot award damages for the cost or value of services of substantially the same type that have been provided to the worker after the worker sustained the injury, or that are to be provided to the worker in the future as either gratuitous services or paid services, if the services that have been provided to the worker after the worker sustained the injury are gratuitous services."

[12] Section 308A contains definitions of both gratuitous services and paid services. The former are:

"... services, other than paid services, that are provided to a worker by a member of the worker's family or household, or by a friend of the worker."

"... that are provided to a worker at commercial rates by another person in the person's professional capacity or in the course of the person's business."

Services are also defined. They include lawn mowing.

[13] Section 308C is one of a collocation of four sections each dealing with a particular defined circumstance in respect of which it is provided the court "can not award damages for the cost or value of services." Section 308B addresses a case in which the worker prior to injury was usually provided with services which were paid for. Section 308D is concerned with cases in which, prior to injury, the worker was usually provided with gratuitous services. Section 308E deals with cases in which prior to injury a worker did not require any defined service.

[14] The case appears to have been argued before the trial judge by reference to s 308E but it is s 308C which will operate, if it applies, to prevent the award. The trial judge said:

"[62] The defendants submit that no allowance for mowing should be made. Before the accident the plaintiff mowed his own lawn. The evidence is, however, that he has paid a commercial mowing operator to mow his lawn after the accident on occasions and wishes to do so in the future if he had the money. He could not afford this on an ongoing basis before the trial, however, and has otherwise had to rely on his grandchildren and son to do it. The plaintiff's evidence was that it had been mostly done by members of his family and probably seven or eight times commercially. In those circumstances it is clear that the services were gratuitous only some of the time.

[64] ... An extract from the Queensland Hansard relied on for the defendants to help identify the purpose of the legislation reads as follows:

"The Bill adopts the Queensland Court of Appeal recommendation to clarify when an award of damages for gratuitous care is prohibited.

A Court is prevented from awarding damages for the value of domestic services where these services have been, are to be, or ordinarily would be provided gratuitously to the worker by a member of the worker's family or household. In line with the original policy intention of the Act, this also clarifies that where gratuitous care has previously been provided to a worker, the worker is not entitled to damages for paid future care." (Emphasis added.)

[65] The plaintiff here, it was submitted, seeks to do exactly what parliament intended he should not, namely say that although the services had been largely gratuitous in the past, if he had the money he would seek to have them provided at a cost.

[66] It seems to me to be fairly arguable, however, that s 308E is aimed at the precise set of facts that ... if the services had all been supplied gratuitously before the trial then the plaintiff is not entitled to damages for paid future care. It does not deal precisely with the situation where some of the services had been paid for after the accident and before the trial and some had been provided gratuitously.

[67] The reference in Hansard to the situation where services have been or ordinarily would be provided gratuitously does not resolve the problem here to my satisfaction. In this case, not all of the relevant services have been provided gratuitously and it is difficult to conclude on the evidence that the plaintiff's family would ordinarily continue to provide them. It may well be that that passage in Hansard dealing with the ordinary provision of services is meant as a collective reference to each of the first subsections of the sections I have set out above. For example, s 308C and s 308E deal only with the usual performance or need for services before the injury. Section 308B(1) and s 308D(1), however, when referring to the usual provision of services, distinguish in their terms between the situations that apply before and after the worker sustained the injury.

[68] Section 308C is also similar to s 308E structurally and may be applicable here too. Before the injury, the plaintiff provided the service of mowing the lawn for himself and his wife. Section 308C(2) in then prohibiting the award of damages for services that are provided to him after the injury as either gratuitous services or paid services, if the services that have been provided to him after he sustained the injury are gratuitous services, draws the same distinction as

s 308E(2) between paid and gratuitous services and only prohibits their recovery if they are gratuitous services.

[69] If parliament had truly intended to prevent plaintiffs from recovering damages for services, for which they had paid in the past after and because of the injury and before the trial, and would pay in the future, simply because they could obtain them gratuitously sometimes, it could have done so clearly. It does not seem to me that it has done that and, in my view s 308E should not be construed so as to detract from the plaintiff's personal common law rights unless that consequence is clear. I shall allow the recovery of damages of $13,495.00 under this head." (footnotes omitted)

[15] The appellants submitted that the terms of ss 308B, 308C, 308D, and 308E, when read against the background of the Second Reading Speech which introduced the sections into the Compensation Act, and the Explanatory Notes accompanying the Parliamentary Bill, extend the prohibition on an award of damages to the circumstances of this case, where the relevant services were partly paid for and partly gratuitous. The relevant part of the Second Reading Speech is set out in Douglas J's reasons. The part of the Explanatory Notes said to be relevant was this:

"Clause 57 ... clarifies the circumstances in which a court is prevented from awarding a worker damages for the value or cost of domestic, nursing and caring services where these services have been provided ... by a member of the ... family, household or friend. It also confirms the original intention ... that awards for damages for future paid domestic, nursing or caring services are unable to be made if a worker has been in receipt of the services gratuitously in the past.

The Act continues to recognise there will be a need in certain circumstances for gratuitous services by providing in the statutory compensation benefits under Chapter 3 for payment of a lump sum in lieu of gratuitous care awards under common law for more seriously injured workers."

[16] The appellant argues that these indications of Parliamentary intention should result in the section being construed widely, to extend the prohibitions to the present case.

"The key (to s 308C) is that post accident and before trial the services are not "paid services" ... . If they are then such cost is not precluded. The assessment is made in the usual way. If the evidence is that post accident ... the services were "paid services" and this will prevail in the future then an award may be made for the cost of ... lawn mowing. If post accident the services were all gratuitous no award may be made even if it is intended to pay in the future. ... in this case, the commercial cost of satisfying the need already paid and to be paid for in the future is not denied ... . ... the intent of the amendments was to ... prevent claimants from circumventing that prohibition by asserting that he/she will, subsequent to the trial obtain those services commercially, where they have not done so in the past ... ."

[18] The appellants' answer is that the respondent impermissibly adds the words to qualify "the gratuitous services" in s 308C so that the prohibition on the award of damages only applies where all the services that had been provided to the worker after injury were gratuitous.

[19] A consequence of the appellants' reading of the section is that had the respondent engaged Max to mow his lawn on all but one of the occasions it needed cutting between injury and trial, and on the other occasion the work was done by his son, no damages at all could be awarded for the cost of satisfying the injury caused need. The result seems unreasonable and gives rise to doubt that it is what Parliament intended. One might read s 308C as though the word "usually' were inserted to qualify gratuitous services so that damages could be recovered save where services that had been provided or were to be provided were "usually" gratuitous. However the section might not then provide an answer in a case where the services in question had been provided with more or less equal frequency on a gratuitous and on a paid basis, and would certainly invite disagreement about the facts relating to the provision of services in many cases.

[20] The respondent counter attacks by pointing out that the appellants themselves read

s 308C as if the words "any of" are inserted so that the prohibition applies "if any of the services that have been provided ... after ... injury are gratuitous services."

[21] The appellants urge their construction for two reasons. The first is that the extrinsic materials reveal a Parliamentary intention to substantially curtail the right of an injured workman to recover Griffiths v Kerkemeyer ((1977) [1977] HCA 45; 139 CLR 161) damages. The second is the provision made in the Compensation Act for a lump sum payment of compensation (which is non-refundable in the event the worker recovers damages) to cover the cost of services the need for which was caused by the injury. This is said to show that s 308C was meant to preclude an award of damages in respect of that need.

[22] The second ground can be disposed of briefly. It has no substance.

[23] Section 193 of the Compensation Act applies if an injury sustained by a workman results in a work related injury "of 15% or more" and "a moderate to total level of dependency on day to day care for the fundamental activities of daily living." If those preconditions are satisfied the injured workman is entitled to an additional lump sum (the maximum amount of which is $226,555), but only if:

"(a) day to day care for the fundamental activities of daily living is to be provided at the worker's home on a voluntary basis by another person; and

(c) the level of care required was not provided to the worker before the (injury); and

(d) the worker physically demonstrates the level of dependency mentioned in subsection (1)(b)."

[24] The respondent did not apply for and was not awarded any compensation pursuant to s 193. It is obvious from the terms of the section he could not qualify for such a payment. His inability to mow the lawn weekly or fortnightly does not demonstrate any level of dependency on day to day care for a fundamental activity of daily living. The section is clearly aimed at seriously disabled persons who struggle to live independently.

[25] The terms of s 193 are of no assistance in determining the applicability of s 308C to the respondent's plight.

[26] The inadequacy of the appellant's first ground lies in the generality of the expressions found in the extrinsic material and the lack of any specific reference to the problem thrown up by this case. There is also the point that the court is called upon to construe the section not extrinsic material. Gibbs CJ made the point in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 304:

"It is an elementary and fundamental principle that the object of the court, in interpreting a statute, "is to see what is the intention expressed by the words used": ... . It is only by considering the meaning of the words used by the legislature that the court can ascertain its intention. And it is not unduly pedantic to begin with the assumption that words mean what they say ... ." (footnotes and references omitted)

"The fundamental object of statutory construction in every case is to ascertain the legislative intention by reference to the language of the instrument viewed as a whole. But in performing that task the courts look to the operation of the statute according to its terms and to legitimate aids to construction.

Quite obviously questions of degree arise. If the choice is between two strongly competing interpretations .... the advantage may lie with that which produces the fairer and more convenient operation so long as it conforms to the legislative intention. If, however, one interpretation has a powerful advantage in ordinary meaning and grammatical sense, it will only be displaced if its operation is perceived to be unintended."

[28] If one construes s 308C and not what was said about it, one notes that it does not apply to the respondent's situation. The services which he usually performed before his injury and which were provided to him afterwards do not fall within the definition of either paid services or gratuitous services. They were a hybrid: partly gratuitous and partly paid for. Section 308C(2) does not deal with such services.

[29] As the parties' submissions impliedly recognise the section must be notionally amended if it is to apply to the respondent. This requires reading the section as though it contained additional words. Such a course is only permissible when the three conditions described by Lord Diplock in Wentworth Securities Ltd v Jones [1980] AC 74 at 105 are satisfied. The conditions are:

(i) It must be possible to determine from an examination of the sections of the Act read as a whole precisely what the mischief was that it was the purpose of the Act to remedy;

(ii) It must be apparent that Parliament had by inadvertence overlooked and so omitted to deal with an eventuality that required to be dealt with if the purpose of the Act was to be achieved;

(iii) It must be possible to state with certainty what were the additional words that would have been inserted by the draftsmen and approved by Parliament had their attention been drawn to the omission.

[30] The second condition is probably satisfied. It is not so clear that the first condition has been fulfilled. One can see what, in general, was the mischief Part 10 of the Compensation Act was meant to remedy. It was awards of damages thought to be excessive and therefore detrimental to the interests of employers, insurers and the public by whom the cost would ultimately be borne. The mischief was dealt with by the four sections in Part 10 which address differently described circumstances in which an injured workman has a need for services by reason of the injury. Depending on how the need has been satisfied post injury and how, if the need existed prior to injury it was satisfied, the sections allow or disallow an award of damages to cover the cost of providing the need. One can say generally that the relevant sections of the Compensation Act curtail the right to damages but before the first condition can be satisfied one must be able to identify the precise mischief which s 308C was meant to address by curtailing that right. In particular one must, in this case, be confident what "mischief" Parliament intended to address in the case of an injured workman receiving services some of which were given gratuitously and some of which were paid for.

[31] The third condition provides the greatest obstacle to the appellants' argument. It is not possible to know how Parliament would have reacted to the drafting of s 308C had the present lacuna been drawn to its attention. One can surmise with equal plausibility and equal uncertainty what Parliament would have preferred: whether to add the words urged by the appellants or by the respondent. It is apparent that Part 10 does not completely abolish the right to damages for injury caused needs. The statutory scheme is to deny the court power to award such damages in the precise circumstances described in the sections. One can only guess at what Parliament would have intended about circumstances not addressed in the section.

[32] The point is reached, in my opinion, where the section does not apply and the court is not justified in inserting any particular words to make it apply. The consequence is that the respondent had a right to recover damages to compensate him for the injury caused need which was recognised in Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161, and s 308C does not, by its terms, operate to prevent the court awarding damages to compensate for the cost of satisfying the need.

[33] There is an ancillary reason why the court should adopt this approach. It is that the right just discussed, recognised in awards for damages for personal injuries since 1977, is a right of the common law which if it is to be abrogated statutorily, must be taken away by clear words: Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277 at 304.

[34] There is a further reason why the court should feel reluctant to essay a construction of s 308C which would, in effect, alter its meaning. It is that the court's construction may give rise to unintended consequences in future cases. The court should not add to anomalies which are already apparent. Suppose there are two injured workmen who suffer the same injuries and need the same services because of things neither can do because of their injuries. One is affluent and the other indigent. One has his need for services met by buying the services. The other has them provided by the charity of friends and family. The indigent workman may not recover any damages for his injury caused need while the affluent other will recover damages.

[35] Suppose, also, two workmen are injured, one more seriously than the other, but both need services by reason of their injuries. The workman less hurt may struggle along putting up with discomfort and inconvenience in doing without the services he needs. Section 308C will not prevent an award of damages in his case because he has not been provided with gratuitous services. If the workman more seriously injured has needs which cannot be ignored and they are met by friends or family he will be unable to recover any damages.

[36] These examples show, I think, that the application of s 308C in practice may give rise to injustice. The section may need amendment. The court should not embark upon a piecemeal, and probably unsatisfactory, attempt at remediation.

[37] For these reasons I would dismiss the appeal with costs.

[38] ANN LYONS J: I agree with the orders proposed by Chesterman JA for the reasons given by his Honour.

[1] It was common ground at the appeal that the relevant reprint was Reprint 1L. See now Ch 5 Pt 9 Workers' Compensation and Rehabilitation Act 2003 (Qld).