Gardiner v Laing O'Rourke Australia Construction Pty Ltd

Background to claims

1. From about October 2011 until 12 March 2018 the appellant, Dr James Gardiner, was employed by the respondent, Laing O'Rourke Australia Construction Pty Ltd. Immediately following the termination of his employment, the appellant wrote to the President of the Anti-Discrimination Board complaining of discrimination on the grounds of disability, and victimisation, in the course of his employment with the respondent. The complaint was the subject of a conciliation conference, as a result of which an agreement was reached to settle the complaint on terms requiring payment to the appellant of $29,412, together with a further $4,400 on account of his legal costs. The terms of the settlement were set out in a Deed of Release and Confidentiality (the Deed), duly executed by both parties on 5 September 2018. The respondent paid the appellant $29,412 on 26 September 2018.
2. On 20 March 2018, well before the settlement of the discrimination complaint, the appellant had lodged a claim for compensation under the Workers Compensation Act, on the basis that he had suffered aggravation, acceleration, exacerbation or deterioration of a psychological condition in the course of his employment. The respondent resisted the claim on the basis that the appellant had received a payment of "damages" awarded "in respect of" the same injury, so that the claim for compensation was precluded by s 151A(1) of the Workers Compensation Act.
3. An Arbitrator at the Workers Compensation Commission upheld the respondent's contention and dismissed the claim for compensation. The appellant lodged an appeal pursuant to s 352 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the Workplace Injury Act). The appeal was heard by the President of the Commission, Judge Phillips who, on 19 December 2019, dismissed the appeal and confirmed the certificate of determination issued by the Arbitrator. [1]

Jurisdiction of this Court

1. On 5 March 2020 the appellant filed a notice of appeal in this Court pursuant to s 353(1) of the Workplace Injury Act. The appeal is limited to a decision of a Presidential member in point of law.
2. A jurisdictional argument was raised with respect to part of the appeal, the respondent asserting that the Arbitrator had made a finding of fact, not disturbed on appeal by the President, that the payment received by the appellant following the conciliation of his complaint to the Anti-Discrimination Board involved the recovery of damages "in respect of" the injury the subject of the workers' compensation claim. The respondent submitted that that finding could not be challenged.
3. If it were truly a finding of fact, this submission should be accepted. However, for reasons identified below, the condition of engagement of s 151A(1) of the Workers Compensation Act involves a question of statutory construction and thus a question of law. Further, the proper characterisation of the payment, being the consideration provided by the respondent under the Deed, turned on the construction of the Deed. The proper construction of the Deed also involved a question of law.
4. The application of s 151A should be addressed first. Whatever the Deed may seek to do, it cannot vary the operation of s 151A(1) which will apply "despite any contract to the contrary": Workplace Injury Act, s 234.

Statutory schemes

1. Resolution of the first issue requires consideration of the interaction of two statutory schemes for redress of a wrong. As the immediate concern is the availability of workers' compensation, it is appropriate to commence with the scheme for payment of such compensation.

(a) Workers Compensation Act

1. Compensation is payable for an injury, defined in the Workers Compensation Act, relevantly in the following terms: 4 Definition of "injury" (cf former s 6 (1)) In this Act - injury - (a) means personal injury arising out of or in the course of employment, (b) includes a disease injury, which means - (i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and (ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, …
2. It is not in doubt that a mental disorder constitutes a "disease" for the purposes of the definition of injury in s 4. [2]
3. Pursuant to s 9, a worker "who has received an injury … shall receive compensation from the worker's employer in accordance with this Act." Part 3, Div 2 of the Workers Compensation Act provides for payment of weekly compensation by way of income support; Pt 3, Div 4 provides for compensation for non-economic loss, by way of a single lump sum payment. Relevantly, s 66 provides: 66 Entitlement to compensation for permanent impairment (1) A worker who receives an injury that results in a degree of permanent impairment greater than 10% is entitled to receive from the worker's employer compensation for that permanent impairment as provided by this section. Permanent impairment compensation is in addition to any other compensation under this Act. Note. No permanent impairment compensation is payable for a degree of permanent impairment of 10% or less.
4. Part 5 of the Workers Compensation Act is headed "Common law remedies". That heading is deemed to be part of the Act. [3] The heading to Div 2 (which is also deemed to be part of the Act) is "Common law and other remedies generally". There are four provisions in Div 2 which have a bearing on the present question; the principal provision, relied upon by the respondent to preclude a claim for compensation, is within this division, being s 151A. 151 Common law and other liability preserved This Act does not affect any liability in respect of an injury to a worker that exists independently of this Act, except to the extent that this Act otherwise expressly provides. 151A Effect of recovery of damages on compensation (1) If a person recovers damages in respect of an injury from the employer liable to pay compensation under this Act then … - (a) the person ceases to be entitled to any further compensation under this Act in respect of the injury concerned (including compensation claimed but not yet paid), and (b) the amount of any weekly payments of compensation already paid in respect of the injury concerned is to be deducted from the damages (awarded or otherwise paid as a lump sum) and is to be paid to the person who paid the compensation, and (c) the person ceases to be entitled to participate in any injury management program provided for under this Act or the 1998 Act. … … 151C 6-months delay before commencement of court proceedings against employer for damages (1) A person to whom compensation is payable under this Act is not entitled to commence court proceedings for damages in respect of the injury concerned against the employer liable to pay that compensation until 6 months have elapsed since notice of the injury was given to the employer. … (3) This section does not limit or otherwise affect the operation of Part 6 of Chapter 7 of the 1998 Act. Note. Part 6 of Chapter 7 of the 1998 Act imposes restrictions on the commencement of court proceedings for damages. 151D Time limit for commencement of court proceedings against employer for damages (1) (Repealed) (2) A person to whom compensation is payable under this Act is not entitled to commence court proceedings for damages in respect of the injury concerned against the employer liable to pay that compensation more than 3 years after the date on which the injury was received, except with the leave of the court in which the proceedings are to be taken. (3) The Limitation Act 1969 does not apply to or in respect of court proceedings to which this section applies. … 151DA Time not to run for commencement of proceedings in certain cases (1) Time does not run for the purposes of section 151D - (a1) while the determination of the claim concerned is delayed as permitted by section 281 of the 1998 Act, but not including delay beyond 2 months after the claimant has provided all relevant particulars about the claim as required by section 281 (2) (b) of that Act, or … (b) while a pre-filing statement served in accordance with section 315 of the 1998 Act in respect of the claim concerned remains current.

(b) Workplace Injury Act

1. Chapter 7 of the Workplace Injury Act sets out a detailed and prescriptive regime for making claims for workers' compensation and work injury damages. The regime is comprehensive. Definitions applicable to the whole Act are found in Pt 1. The term "claim" is there defined to mean "a claim for compensation or work injury damages that a person has made or is entitled to make"; the term "compensation" is defined to mean "compensation under the Workers Compensation Acts, and includes any monetary benefit under those Acts". [17]
2. The term "damages" and the phrase "work injury damages" are defined in Pt 1 of Ch 7: 250 Interpretation (1) In this Chapter - damages has the same meaning as in Part 5 (Common law remedies) of the 1987 Act. [18] ... work injury damages means damages recoverable from a worker's employer in respect of - (a) an injury to the worker caused by the negligence or other tort of the employer, or (b) the death of the worker resulting from or caused by an injury caused by the negligence or other tort of the employer, whether the damages are recoverable in an action for tort or breach of contract or in any other action, but does not include motor accident damages.
3. Part 2 of Ch 7 is headed "Giving notice of injury and making a claim". Consistently with the definition of "damages", s 253 provides: 253 Interpretation Words and expressions used in this Part have the same meaning as in Part 5 (Common law remedies) of the 1987 Act.
4. Although subject to exceptions, s 254 provides that "[n]either compensation nor work injury damages are recoverable by an injured worker unless notice of the injury is given to the employer as soon as possible…". Section 255 prescribes how notice is to be given. Division 2 of Pt 2 provides for the making of claims for compensation and damages. A claim must be made in accordance with Workers Compensation Guidelines issued under s 376, which regulate the form in which the claim is to be made, the manner in which it is to be made, and the information it is to contain. [19]
5. The heading and the first two provisions in Pt 2, Div 4 read as follows: Division 4 Claims for lump sum compensation and work injury damages 280A Claim for lump sum compensation a pre-condition to damages claim A claim for work injury damages in respect of an injury cannot be made unless a claim for lump sum compensation in respect of the injury is made before or at the same time as the claim for work injury damages. 280B Lump sum compensation to be paid before damages recovered (1) An injured worker cannot recover damages in respect of an injury from the employer liable to pay compensation under this Act in respect of the injury unless and until any permanent impairment compensation to which the worker is entitled in respect of the injury has been paid. (2) This section does not prevent a claim for damages from being made before any permanent impairment compensation to which the worker is entitled in respect of the injury has been paid. Note. This section ensures that an injured worker receives the compensation to which the worker is entitled before damages are recovered (because section 151A of the 1987 Act would prevent the payment of compensation after damages are recovered).

(c) Anti-Discrimination Act

1. On the preferred construction of the workers' compensation legislation, recovery of damages pursuant to a complaint under the Anti-Discrimination Act will not engage the operation of s 151A of the Workers Compensation Act. That conclusion is confirmed by a consideration of the terms of the Anti-Discrimination Act generally, but may be illustrated by reference to the provisions relevant to the present case.
2. The appellant made a claim against the respondent alleging discrimination on the ground of disability. The complaint was in respect of conduct rendered unlawful by s 49D of the Anti-Discrimination Act dealing with such discrimination in relation to work. Section 49D provides as follows: 49D Discrimination against applicants and employees … (2) It is unlawful for an employer to discriminate against an employee on the ground of disability - (a) in the terms or conditions of employment which the employer affords the employee, or (b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or (c) by dismissing the employee, or (d) by subjecting the employee to any other detriment. … (4) Nothing in subsection … (2) (c) renders unlawful discrimination by an employer against a person on the ground of the person's disability if taking into account the person's past training, qualifications and experience relevant to the particular employment and, if the person is already employed by the employer, the person's performance as an employee, and all other relevant factors that it is reasonable to take into account, the person because of his or her disability - (a) would be unable to carry out the inherent requirements of the particular employment, or (b) would, in order to carry out those requirements, require services or facilities that are not required by persons without that disability and the provision of which would impose an unjustifiable hardship on the employer.
3. The concept of discrimination on the ground of disability is defined in s 49B, which relevantly provides: 49B What constitutes discrimination on the ground of disability (1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of disability if the perpetrator - (a) on the ground of the aggrieved person's disability …, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability …, or (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, … comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. (2) For the purposes of subsection (1) (a), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability.

(d) characterising the liabilities created by the Anti-Discrimination Act

1. The importance of treating the statutory protections provided by the Anti-Discrimination Act as a discrete and independent statutory scheme has long been recognised in this Court. In Commissioner of Police v Estate of Russell, [22] a question had arisen as to whether the State was vicariously liable for the acts of a police officer pursuant to the Law Reform (Vicarious Liability) Act 1983 (NSW), or whether vicarious liability was controlled by s 53 of the Anti-Discrimination Act. The issue did not need to be determined in the appeal, but Spigelman CJ, with whom Davies AJA agreed, stated: [23] "[69] Although it is not necessary for purposes of the decision, I should indicate that I do not share the opinion expressed by McHugh JA, and adopted by Lee J and Sully J, that a complaint leading to an order of payment of damages … by way of compensation" under s 113(1)(b)(i) constitutes a 'tort' within the meaning of s 8 of the Law Reform (Vicarious Liability) Act. [70] There is no doubt that statutes can create new torts and have done so. There is no simple definition of a tort. The elements that can be said to characterise torts are able to be stated at different levels of generality. The fact that all or most torts can be described in a particular way does not mean that everything that can be described in that way constitutes a tort. Even s 52 and s 82 of the Trade Practices Act 1974 (Cth) have been said not to create liability in tort for purposes of contribution under s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (Hampic Pty Ltd v Adams (2000) 22 ATPR 41,737 (40,545) at [61]). [71] I note that the definition of tort in Halsbury, relied on in the prior authorities, refers to civil rights of action and 'rights of action in tort'. In my opinion, it is not accurate to describe proceedings by way of complaint before a Tribunal as a 'right of action'. That terminology is reserved for proceedings in a court of law."
2. The Chief Justice then referred to cases dealing with workers' compensation and the indemnity available from a negligent third party in which the courts declined to treat such payments as the recovery of a debt or damages.
3. There had been intimations of such an approach in an earlier case, Australian Iron & Steel Pty Ltd v Najdovska. [24] Priestley JA stated, with respect to the assessment of damages under the Anti-Discrimination Act: [25] "The submission made to the Tribunal was that the question should be approached not by reference to the date which the Tribunal worked out on the materials available to it but on a loss of chance basis…. The Tribunal rejected the submission as being somewhat speculative, saying that it did not take into account all relevant factors. For AIS the same submission was put to this Court. It was said that it was a principle of the giving of damages in tort cases that situations of the kind appearing in the present appeals should be dealt with on a loss of chance basis and that the Tribunal erred in law in not following that method. I do not see how this question can be turned into a question of law as that term is used in the Act. Section 113 says that the Tribunal may - '… (b) find the complaint substantiated and … (i) … order the respondent to pay to the complainant … by way of compensation for any loss or damage suffered by reason of the respondent's conduct …'. Whether or not the principles of the assessment of damages in tort should be applied in an assessment under s 113(b) it seems to me that the assessment is essentially a matter of fact. I see no reason why the Tribunal in attempting to make the assessment required of it under the section should be required as a matter of law to adopt a Chaplin v Hicks approach to the issue of compensation in the present case." [26]

Terms of the Deed

1. If the foregoing analysis is correct, nothing turns on the terms of the Deed, except to characterise the deed as involving the settlement of a complaint brought under the Anti-Discrimination Act. That particular characterisation was not contested. However, if it be necessary to characterise the payment made under the Deed, in order to say whether it constitutes recovery of damages for the purposes of s 151A(1) of the Workers Compensation Act, it becomes necessary to identify the structure, purpose and content of the Deed.
2. In accordance with the principles set out in Grant v John Grant & Sons Pty Ltd: [34] "From the authorities which have already been cited it will be seen that equity proceeded upon the principle that a releasee must not use the general words of a release as a means of escaping the fulfilment of obligations falling outside the true purpose of the transaction as ascertained from the nature of the instrument and the surrounding circumstances including the state of knowledge of the respective parties concerning the existence, character and extent of the liability in question and the actual intention of the releasor."
3. That principle has been applied by this Court in construing a deed of release dealing with complaints under the Anti-Discrimination Act. [35]

(a) recitals in Deed

1. In the present circumstances, it is not necessary to rely on extrinsic material to identify the intended scope of the Deed. In 16 recitals the Deed set out the history of the appellant's employment by the respondent (referred to in the deed as "LORAC"). The recitals identified three sets of "concerns" expressed by the appellant in the course of his employment, by reference to the conduct of other company officers. These were referred to as "the complaints", which the respondent arranged to be investigated. The respondent also arranged for the appellant to be examined by a psychiatrist, who confirmed that he was suffering from a psychiatric condition, first diagnosed some years earlier. The recitals then recorded the respondent's conclusion that the appellant was not fit to perform the inherent requirements of his role with the respondent, as a result of which his employment was terminated. The final three recitals read as follows: "N. On 12 March 2018 Dr Gardiner filed a complaint in the Anti-Discrimination Board of NSW (ADB) alleging that LORAC had contravened various provisions of the Anti-Discrimination Act 1977 (NSW). That complaint was allocated complaint numbers 2017/0154 & C2018/0244 (The ADB Complaints). O. On 25 July 2018 the ADB Complaints were the subject of a conciliation conference before the ADB (Conciliation Conference). P. The parties agreed, without any admissions as to liability, to settle all issues between them howsoever arising out of the [specified concerns], the Complaints, the Investigation, the ADB Complaints, the Conciliation Conference and/or in any way connected to the Employment or the Termination of Employment by LORAC excluding any claim by Dr Gardiner pursuant to the provisions of any applicable Workers' Compensation legislation, in accordance with the terms of this Deed."
2. A number of propositions may be noted. First, the recitals identified with a degree of precision the matters which gave rise to the appellant's "concerns" in relation to his employment, and the manner in which the respondent dealt with those concerns and terminated his employment. The primary, if not the sole, purpose of the settlement was to provide a final resolution of the subject matter of the complaints of unlawful discrimination under the Anti-Discrimination Act.
3. Secondly, recital P expressly recognised that the parties were aware of, and did not intend to resolve, any claim the appellant might have "pursuant to any applicable [w]orkers' [c]ompensation legislation".

(b) operative clauses

1. Clause 1 dealt with definitions and interpretation.
2. By cl 2, which was headed "Payment/Termination of the ADB Complaints", the appellant was required to provide the respondent with an executed copy of the Deed and "a Notice of Discontinuance lodged in the Fair Work Commission by Dr Gardiner in respect of the ADB Complaints". (He was also required to provide a tax invoice from his solicitors for the agreed amount of costs.) In consideration of the appellant taking those steps, the respondent was to pay the sums agreed. The sum of $29,412 was described as "General Damages", which, despite the capitalisation, was not a defined term and the basis of calculation was not specified.
3. The reference to a notice of discontinuance lodged in the Fair Work Commission was a mistake; there was no evidence that the applicant had ever lodged a complaint with the Fair Work Commission (a Commonwealth body); the ADB complaints were lodged with the President of the Anti-Discrimination Board (NSW). Consistently with the rest of the Deed, the appellant was not required to discontinue his claim for workers' compensation.
4. The language of recital P was repeated, without significant variation, in cl 3 of the Deed. To similar effect, the release contained in cl 4 also adopted the language of recital P, although it identified "all Claims which Dr Gardiner (a) now has; (b) at any time had; (c) may have; and/or (d) but for this Deed, could or might have had against LORAC …". However, each of clauses 3 and 4 ended with the exclusion with respect to claims pursuant to workers' compensation legislation.
5. The proper construction of the Deed negates any possibility that the payment by way of "General Damages" was intended to settle any claim for workers' compensation or work injury damages which might be available subject to the controls imposed by the Workers Compensation Act and the following of the procedures set out in the Workplace Injury Act. The characterisation of the payment made as consideration of the release from liability and the discontinuation of the complaint to the Anti-Discrimination Board follows from the proper characterisation of the Deed. That involved a question of law. The conclusions of the Arbitrator and the President were inconsistent with that conclusion and therefore involved an erroneous resolution of the question of law.

(c) effect of payment

1. The primary position of the respondent did not cavil with the construction of the Deed set out above, but rather relied upon the payment constituting a payment of "damages" for the purposes of s 151A(1) of the Workers Compensation Act, regardless of its proper characterisation under the Deed. That submission depended upon an understanding of the scope and operation of s 151A(1) which, as a matter of law, has been rejected.

(d) limit of exclusion clause in Deed

1. A final submission by the respondent was that even if a claim for workers' compensation fell within the exclusion from the terms of the release, a claim for work injury damages did not. That was because such a claim was made "pursuant to" the common law, and not pursuant to the workers' compensation legislation.
2. That submission is not consistent with the ordinary use of language in respect of claims for damages. While it is true that one may describe a claim as arising "pursuant to" a legislative provision, if that is the source of the entitlement to make a claim, that meaning is awkward. If the statute is the source of liability, the claim may arise under the statute, but it is not made "pursuant to" the statute, unless the statute prescribes or regulates the manner in which the claim is to be made and maintained. Many claims are aptly described as having been made pursuant to rules of court. A claim for work injury damages can only be made pursuant to the requirements of the Workplace Injury Act. It is apt to say that a claim has, or has not been made pursuant to a legislative provision which states that a "claim … cannot be made unless …" certain steps have been taken, which is the language of s 280A of the Workplace Injury Act.
3. There are different ways of expressing this concept; one could say that the claim must be made "in conformity with" the legislated regime, or "in accordance with" it. [36] Either would reflect the ordinary meaning of "pursuant to". Thus to describe a claim for compensation or damages (or, as is often the case, both) as made "pursuant to" the rules for making such claims prescribed by the workers' compensation legislation accords with ordinary usage of that term. Nor is there any hint in the Deed that the exclusion was intended to distinguish between claims for workers' compensation (which arose under the Workers Compensation Act) and claims for work injury damages (liability for which arose under the common law, but which were regulated by the Workers Compensation Act and claims for which were made under the Workplace Injury Act). The respondent's contention in this respect must be rejected.

Conclusions

1. It follows that the appeal must be allowed and the following orders made: 1. Allow the appeal from the decision of the President dated 19 December 2019. 2. With respect to the proceedings in the Workers Compensation Commission: 1. set aside the order of the President dismissing an appeal from the determination of an Arbitrator of 28 June 2019; 2. set aside the order confirming the certificate of determination of the Arbitrator; 3. set aside the certificate of determination made by the Arbitrator on 28 June 2019. 1. Remit the matter to the Workers Compensation Commission to determine the remaining issues in the dispute. 2. Order that the respondent pay the appellant's costs of the proceeding in this Court.
2. LEEMING JA: I agree with the orders proposed by Basten JA, and his Honour's reasons enable me to explain my reasons for doing so concisely.
3. The first question is this Court's jurisdiction. The Workers Compensation Commission had dismissed the appellant's claim for weekly benefits, medical expenses and lump sum compensation because it found that s 151A was engaged by the payments made pursuant to a deed of settlement. Section 151A is reproduced in Basten JA's judgment. It relevantly provides that if a person "recovers damages in respect of an injury from the employer liable to pay compensation" under the Workers Compensation Act, then the person ceases to be entitled to compensation in respect of the injury, and has to repay any weekly payments of compensation already paid in respect of the injury. Section 151A is thus disentitling in respect of future payments of compensation in respect of the injury, as well as imposing an obligation to repay compensation already paid in respect of the injury.
4. The respondent's threshold submission in response to the appeal was that whether the payment made to the appellant was a payment of damages in respect of the injury was a question of fact falling outside the scope of the appeal confined to cases where a party is aggrieved "in point of law" conferred by s 353 of the Workplace Injury Act. It is fair to say that its oral submissions were more diffident than those advanced in writing.
5. The entry into the deed, and the making of two payments totalling some $34,000 by LORAC to the appellant and his solicitors were (non-contentious) questions of fact. But whether those transfers of money amounted to the appellant "recover[ing] damages in respect of an injury from the employer liable to pay compensation under this Act" necessarily involves an analysis of (a) the legal character of the bargain struck between the parties and (b) the construction of s 151A. Both are questions of law. Only when both questions have been answered can it be determined whether the payments engaged the disentitlement effected by s 151A, and thus whether the Workers Compensation Commission constituted by the President was correct to dismiss the appeal on the basis that s 151A applied. It follows that I reject the challenge to jurisdiction.

Introduction The question in this appeal is whether a payment made by the respondent, Laing O'Rourke Australia Construction Pty Ltd (LORAC), to the appellant, Dr James Gardiner (Dr Gardiner), pursuant to a deed of release and confidentiality made between LORAC and Dr Gardiner on 5 October 2018 (the Deed) constituted a recovery of damages in respect of an injury from LORAC as an employer liable to pay compensation under the Workers Compensation Act 1987 (NSW) (the Compensation Act). The question arose in the context of a claim for compensation under the Compensation Act made by Dr Gardiner against LORAC in respect of psychological injury alleged to have been suffered by him in the course of his employment by LORAC. If the payment was properly characterised as recovery of damages within the meaning of Section 151A of the Compensation Act, Dr Gardiner ceased to be entitled to any further compensation in respect of the injury concerned.

1. Section 151A of the Compensation Act relevantly provides that, if a person recovers damages in respect of an injury from the employer liable to pay compensation under the Compensation Act then the person ceases to be entitled to any further compensation under the Compensation Act in respect of the injury concerned, including compensation claimed but not yet paid. That provision must be considered in the light of the provisions of s 280B of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the Management Act). Section 280B relevantly provides that an injured worker cannot recover damages in respect of an injury from the employer liable to pay compensation under the Management Act in respect of the injury unless and until any permanent impairment compensation to which the worker is entitled in respect of the injury has been paid. Section 280B ensures that an injured worker receives the compensation to which the worker is entitled before damages are recovered because s 151A of the Compensation Act would prevent the payment of compensation after damages are recovered. If, as LORAC contends, the payment under the Deed constitutes the recovery of "damages" for the purposes of s 151A(1) of the Compensation Act, then the payment of that amount would have contravened s 280B.
2. On 5 March 2019, Dr Gardiner lodged an application to the Workers' Compensation Commission of New South Wales (the Commission) claiming compensation under the Compensation Act. The application described the type of injury as being: "Disease injury or in the alternative aggravation, acceleration, exacerbation or deterioration of a disease or injury psychological." The claim form included the following as the injury description: "Injury occurred as a result of the nature and conditions of employment whereby numerous unaddressed administrative issues / difficulties occurred which affected [Dr Gardiner] psychologically. There was a failure to remedy same with [Dr Gardiner's] direct line manager. This failure to provide appropriate support staff and assistance to [Dr Gardiner] following [LORAC] being advised of the issues [Dr Gardiner] was experiencing resulted in [Dr Gardiner] decompensating. [Dr Gardiner] advised [LORAC] of his deteriorating psychological health, however the administrative issues, failure to provide support staff and being deceived regarding potential business ideas, only exacerbated [Dr Gardiner's] psychological injury." Detailed statements were attached to the application. In particular, paragraph 65 of one of the statements asserted that Dr Gardiner had reiterated to an officer of LORAC on 7 November 2017 the severity of his psychological condition and that his psychological condition eventually resulted in his termination from his employment on the basis that he was unfit to perform the inherent requirements of the duties and responsibilities of the role for which he was employed.

The Deed

1. Following his termination on 12 March 2018, Dr Gardiner lodged a complaint with the Anti-Discrimination Board of New South Wales (the ADB) alleging that LORAC had discriminated against him on the grounds of disability and victimised him in the course of his employment. Section 49D(2)(c) of the Anti-Discrimination Act 1977 (NSW) (the Discrimination Act) relevantly provides that it is unlawful for an employer to discriminate against an employee on the ground of disability by dismissing the employee. Following a conciliation conference before the ADB, Dr Gardiner and LORAC agreed, without any admissions as to liability, to settle all issues between them and entered into the Deed.
2. By cl 3 of the Deed, the parties agreed, relevantly, that that the matters recited and agreed to by the Deed were in full and final settlement of all Claims (as defined in the Deed) that Dr Gardiner or LORAC had against the other arising from or relating in any way to:

• the Timbrell Concerns;
• the Wilson Concerns;
• the Prof Harris Concerns;
• the Complaints;
• the Investigation;
• the ADB Complaints;
• the Conciliation Conference; and
• Employment or the Termination of Employment. By cl 4, Dr Gardiner released and forever discharged LORAC from all Claims arising from or related in any way to the matters described above in relation to cl 3. Each of cll 3 and 4 of the Deed ended as follows: "… excluding any claim that [Dr Gardiner] might elect to pursue pursuant to any applicable Workers' Compensation legislation."

1. Each of the capitalised terms set out in cll 3 and 4 was defined in the Deed. The Timbrell Concerns related to allegations that included concerns that Dr Gardiner was being denied certain intellectual property rights. The Wilson Concerns were described in an email of 27 October 2017 that were not more particularly identified in the evidence. The Prof Harris Concerns were allegations made by Dr Gardiner in an email to Prof Harris regarding an issue that arose in relation to "the Drone Patent".
2. Relevantly, cl 2(b)(i) of the Deed provided that, within seven days of receipt by LORAC of certain documents identified in cl 2(a), LORAC was to pay to Dr Gardiner "the sum of $29,412.00 (gross) as General Damages". It is clear enough that the sum paid by LORAC to Dr Gardiner pursuant to cl 2(b)(i) of the Deed was consideration for the settlement and release referred to in cll 3 and 4. The question is whether the payment of that sum "as General Damages" can fairly be characterised as Dr Gardiner recovering damages in respect of an injury from LORAC as the employer liable to pay compensation under the Compensation Act, within the meaning of s 151A.

Construction of the Deed

1. A fair reading of the Deed indicates that the payment made to Dr Gardiner by LORAC pursuant to the Deed did not constitute damages in respect of any injury suffered by Dr Gardiner that would be compensable under the Compensation Act or the Management Act. Rather, it was a payment in consideration of the release by Dr Gardiner of LORAC in respect of his claim under the Discrimination Act and the various other matters that were referred to in cll 3 and 4. That is made clear by the several references in the Deed that the Deed was not intended to be a payment in respect of any claim that Dr Gardiner might elect to pursue pursuant to any applicable workers' compensation legislation. That is made explicitly clear in cll 3 and 4 as well as several other provisions of the Deed.
2. I consider that the appeal should be allowed. I have had the advantage of having considered in draft form the proposed reasons of Basten JA and Leeming JA. For the reasons expressed above, I agree with the orders proposed by Basten JA.

Endnotes

1. Gardiner v Laing O'Rourke Australia Construction Pty Limited [2019] NSWWCCPD 66.
2. Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626; [1964] HCA 34.
3. Interpretation Act 1987 (NSW), s 35(1).
4. See Workers Compensation Act, s 151U.
5. Civil Liability Act, s 3B(1)(g).
6. (2015) 91 NSWLR 34; [2015] NSWCA 281.
7. Dionisatos at [25].
8. Dionisatos at [27].
9. Compare the Compensation to Relatives Act 1897 (NSW), s 3(3).
10. See, eg, Civil Liability Act, s 5, negligence and s 5A(1).
11. Civil Liability Act, s 11A(3).
12. Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450 at 452 (Hodges J); Pearce and Geddes [Statutory Interpretation in Australia (8th ed, 2014, Butterworths)] at [4.6].
13. (2013) 252 CLR 1; [2013] HCA 2 at [98] (Gageler J) and [78] (Crennan, Kiefel and Bell JJ).
14. [2017] NSWCA 251.
15. (1983) 151 CLR 115 at 125 (Gibbs CJ); [1983] HCA 16.
16. (1961) 105 CLR 569 at 599-600 (Windeyer J); [1961] HCA 15.
17. Workplace Injury Act, s 4(1), claim and compensation.
18. The legislation refers to the Workers Compensation Act as "the 1987 Act" and the Workplace Injury Act as "the 1998 Act".
19. Workplace Injury Act, s 260.
20. Anti-Discrimination Act, s 89A.
21. Anti-Discrimination Act, s 89B(2).
22. (2002) 55 NSWLR 232; [2002] NSWCA 272.
23. Prior to 2004, the forms of relief now set out in s 108 were set out in s 113.
24. (1988) 12 NSWLR 587.
25. Najdovska at 619F-620.
26. Street CJ and Mahoney JA agreed with Priestley JA.
27. (1989) 20 FCR 217.
28. Hall at 239.
29. Hall at 281.
30. [2004] NSWADTAP 22 (M Chesterman ADCJ (Deputy President); N Rees (Deputy President) and L Taksa (Member).
31. [1997] 2 VR 127; [1996] VSC 51.
32. Spencer at 144.
33. Anti-Discrimination Board, Annual Reports 2017-2018 and 2018-2019, sch 1.
34. (1954) 91 CLR 112 at 129-130 (Dixon CJ, Fullagar, Kitto and Taylor JJ); [1954] HCA 23.