Gardiner v State of Victoria [1999] VSCA 100

148. On the appeal, no separate argument was advanced in aid of any particular remedy. Indeed little attention was given to the form of the relief to which the appellant might be entitled, for the appeal was fought over whether s.122 created any private right to sue for damages for breach and, if it did, whether the employer was shown in fact to have been in breach. As a result we heard no argument on what might well have proved the particular difficulty of framing relief by way of injunction or declaration by reference to s.122, given (for instance) the nature of the duty imposed on the employer by s.122, its uncertain duration and the time which has elapsed since the duty first arose (supposing it arose at all) and, of course, the terms of s.122(2). Would an injunction have gone to compel performance of the duty imposed by s.122(1) without reference to subs.(2) and so long after the default in performance? Would any declaration have been of present entitlement to the providing of employment (whatever "provide" might mean), or only to past entitlement, casting back to the time when it was first known that the appellant had some capacity for work? Fortunately these questions need not now be answered, for, as I apprehended it, the appellant was seeking relief at all only in aid of the private right of action that he asserted. It suffices then that the appellant failed to establish the right of action upon which his claims depended.

151. That the appellant's failure in that regard disentitles him to any relief in the circumstances of this case is borne out by the approach taken in other cases. Thus, in O'Rourke, the plaintiff sued a local council unsuccessfully for damages for failing in its statutory duty to provide him with housing. The House of Lords restored the decision at first instance to strike out as groundless the plaintiff's pleading of a private right of action, reversing the Court of Appeal's decision and overruling that Court's earlier decision in Thornton v. Kirklees Metropolitan Borough Council [1979] Q.B. 626 (a decision to which we were referred by the appellant), while at the same time approving and applying Cocks v. Thanet District Council [1983] 2 A.C. 286 in which the plaintiff had claimed a declaration, injunction and damages on the basis that he was owed a private law duty, but was refused all relief when he failed to establish that the statute created any private right of action. A like approach may be seen, too, in Stubbs v. N.R.M.A. Insurance Ltd. (1997) 42 N.S.W.L.R. 550, a case to which Mr. Dowling referred us (and which incidentally demonstrates also the possible difficulties of framing satisfactory relief by way of injunction or declaration: see especially at 572 per Powell, J.A.) The appellant, having failed here to establish that s.122 creates any private right of action for damages for breach, fails also in his claims for injunction and (if it were permitted to be raised) a declaration.

159. On 29th July 1993 the appellant filed a writ in the County Court claiming orders compelling the respondent to provide employment for him in accordance with s.122(1)(a) or (b) of the Accident Compensation Act 1985, alternatively damages, and costs and general relief. After a trial occupying four days the learned trial judge held that s.122 required timely notice to the employer and that that had not been given. His Honour therefore gave judgment dismissing the proceeding. It is against that judgment that the present appeal is brought. The appellant contends that there was no need to give notice to the respondent, alternatively that such notice was given. He seeks an order remitting the matter to the County Court for further hearing.

162. The appellant joined the Law Department in 1967 at the age of 17. He resigned in 1970 but re-joined in 1974. He then remained with the Department or its successor until 1991, when he was the County Court Civil Listings Assistant Registrar. By letter dated 7th February 1991 addressed to the Registrar of the County Court he gave notice of his resignation from the Victorian Public Service. His resignation was accepted with effect on 3rd March 1991. That date was chosen to take account of recreation leave that was due to him. He was paid the benefits appropriate to voluntary termination, including a refund of superannuation contributions in the sum of $35,817.31.

165. On 8th November 1991 the appellant's solicitors wrote to the Personnel Officer of the Attorney-General's Department in the following terms:

"We advise that we act on behalf of the abovenamed who resigned from his position of County Court Civil Listings Assistant Registrar on the 7th February 1991.

We are instructed by our client to advise that he wishes to withdraw his resignation and be reconsidered for employment in the Department.

The reason for this is that medical evidence now indicates that the resignation was made at a time when he was not capable of giving rational consideration to the implications of his decision.

We would be grateful if you could contact the writer to advise what steps can be taken by Mr. Gardiner to achieve reinstatement."

The appellant had been suffering from bipolar affective disorder since at least 1975.

173. That letter was formally acknowledged on 21st November 1991. On 22nd January 1992 the Manager, Personnel Review and Development of the Attorney-General's Department advised that the appellant's resignation was regarded as effective as at 3rd March 1991 and was not able to be withdrawn. Accordingly, he said, it was not possible to reinstate the appellant's employment in the Department. On 5th March 1992 there was a determination of the WorkCare Appeals Board, referred to below, which was favourable to the appellant. On 25th August 1992 the appellant's solicitors wrote to the Attorney-General's Department, saying that the appellant's resignation had been vitiated by his illness, that he had recovered sufficiently to return to work and that the Department was obliged to provide him with employment pursuant to s.122.

176. At all relevant times s.122 of the Accident Compensation Act read:

"122. (1) If within the period referred to in sub-section (3) after a worker commences to be entitled to receive weekly payments in respect of an injury arising out of or in the course of employment with an employer -

(a) the worker no longer has an incapacity for work, the employer must provide employment for the worker in a position which is the same as or equivalent to the position which he or she held before the injury; or

(b) the worker has a partial incapacity for work, the employer must provide suitable employment for the worker.

(2) Sub-section (1) does not apply if the employer shows that it is not practicable for the employer to provide employment in accordance with that sub-section.

(3) For the purposes of this section, the period for the purposes of sub-section (1) after a worker commences to be entitled to receive weekly payments is the period of 12 months or the sum of the periods not exceeding, in the aggregate, 12 months first occurring after the injury during which the worker has an incapacity for work."

That section was inserted in the Act by the Accident Compensation (General Amendment) Act 1989. It replaced s.112A, which had been inserted by the Accident Compensation (Amendment) Act 1987. As to the expression "Penalty: 150 penalty units", see s.97 of the Penalties and Sentences Act 1985 and, on and after 22nd April 1992, s.111 of the Sentencing Act 1991.

186. When I refer to s.122 in this judgment, I shall be referring to the section in the form set out in [48] above. There have been subsequent amendments but, on the view I take of the case, it is unnecessary to mention them.

189. Mr Dalton advanced two principal submissions. The first was that, putting to one side the second limb of sub-s.(3), s.122(1)(a) imposed an obligation on an employer to provide employment of the kind described in that paragraph if, within 12 months after a worker commenced to be entitled to receive weekly payments in respect of an injury arising out of or in the course of employment with that employer, the worker no longer had an incapacity for work. Subject to sub-s.(2), that was an absolute obligation. It mattered not whether the worker had requested such employment or whether the employer knew that the worker no longer had an incapacity for work. Accordingly no notice from the worker to his or her employer was required. Section 122(1)(b) was to be construed in a similar fashion.

192. I do not accept that submission. The natural construction of s.122(1) is that the employer must be aware that the worker no longer has an incapacity for work or has only a partial incapacity. An employer cannot be expected to provide employment of the kind described in paragraph (a) or (b) until one or other of those conditions is satisfied. So to construe the section is consistent with its being a penal provision. That does not mean that a stubborn or obtuse employer can escape liability by saying that it was not aware of the worker's recovery or partial recovery if it was aware of facts from which it should have drawn that conclusion.

195. There is no need to decide in this case whether the employer's becoming aware of the worker's recovery or partial recovery is sufficient on its own to enliven the employer's obligation, so that an unsolicited offer of employment must be made, or whether some form of claim or request must also be received. The employer's obligation is to provide employment but s.113, which was also in force at all relevant times, provided that weekly payments might be terminated or reduced if a worker unreasonably did not accept an offer of suitable employment. Section 113 does not, however, resolve the question whether the worker must first invoke his or her rights under s.122. A construction requiring an unsolicited offer might be more consistent with the general law of employer and employee and with the object of the legislation to encourage an early return to work if the respondent's second contention referred to in [63] below is accepted.

198. Again putting to one side the second limb of sub-s.(3), the period of 12 months after a worker commences to be entitled to receive weekly payments in respect of an injury arising out of or in the course of employment with an employer is, so far as the express words of s.122 are concerned, simply the period within which the worker must recover or partially recover. Although the true construction of the section is that the employer must become aware of the recovery, it does not say that that awareness must be acquired within any particular period. One possibility is that, so long as the worker recovers or partially recovers within the 12 months, the employer's obligation is enlivened if it becomes aware of that fact at any time thereafter. Another possibility is that the employer must become aware of the worker's recovery or partial recovery within a reasonable time thereafter. I do not think that either of those solutions is open, especially to a court whose task is to construe the legislation rather than to supplement it. The "hard case" of a worker who recovers on the 365th day just has to be accepted. In agreement with the learned trial judge, I would hold that not only must the worker recover or partially recover within the 12 months but the employer must also become aware of that fact within that period.

201. Mr Dalton's alternative submission, if the Court should be of that opinion, was that the respondent had become aware of the appellant's recovery or partial recovery within the relevant period of 12 months.

204. A claim for compensation was initially unsuccessful but was upheld by the WorkCare Appeals Board on 5th March 1992. The Board decided that the appellant had suffered a deterioration of his bipolar affective disorder arising out of or in the course of his employment and that he had been incapacitated from in or about January 1991. Payments were then made, back-dated to 3rd March 1991. Section 82(1) was amended by the Accident Compensation (WorkCover) Act 1992, but in 1991 it read:

"82. (1) 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."

That would suggest that the appellant became entitled to compensation in or about January 1991, which was the view for which counsel for the respondent contended below. Counsel for the appellant argued that, at least for the purposes of s.122, the appellant "commence[d] to be entitled to receive weekly payments" on 3rd March 1991. As it happens, it is unnecessary to resolve that controversy.

209. Mr Dalton submitted that the respondent became aware of the appellant's recovery or partial recovery by 3rd March 1992 by reason of one or more of five documents. The first was the form the appellant signed in September 1991 claiming accident compensation. It was said that by its nature that invoked the parties' rights and obligations under the Act. That may be so but, far from intimating that the appellant has recovered or partially recovered, the claim form describes the injury that he has suffered. I did not understand counsel to say more than that this document set the scene for the others.

212. The second document was an internal memorandum from the Registrar of the County Court to the Chief Executive Officer dated 16th October 1991. The Registrar said that, when the appellant was well and of sound mind, he was a very productive and capable officer. It was submitted that that "specifically invoked s.122". I do not accept that submission. To my mind the memorandum does no more than discuss, in a supportive fashion, the injury that the appellant has sustained.

215. The third document was the appellant's solicitors' letter of 8th November 1991. The thrust of that letter is that the appellant was ill when he resigned, not that he has now recovered or partially recovered. He may still be ill. The point being made is that his resignation was affected by his illness. A letter of that tenor was insufficient to make the respondent aware that the appellant no longer had an incapacity for work or had only a partial incapacity. At best it implied his belief to that effect.

218. By the time the Manager, Personnel Review and Development of the Attorney-General's Department had replied to that letter, the fourth and fifth documents had come into existence. One was a report by Dr Strauss, a psychiatrist, to the respondent's insurer dated 11th November 1991. Dr Strauss considered that, although the appellant suffered from chronic manic depressive psychosis, his employment had not been a contributing factor. He said that the appellant's condition had significantly improved since he had re-commenced psychiatric treatment. In his opinion the appellant was ready to return to work and a return to work would be advisable.

221. The other document was a report from the appellant's treating psychiatrist, Dr Fitzgerald, dated 9th December 1991. He said that there could be little doubt that the appellant's resignation was "an aberration in a lifelong history of occupational consistency" and that he now seemed to accept the need to continue with lithium medication on a long term basis. In those circumstances Dr Fitzgerald saw no impediment to the appellant's returning to his former employment, provided that he was afforded a short planned settling-in time.

224. The difficulty with both of those reports is that there is no evidence that they were brought to the attention of the respondent on or before 3rd March 1992. It was submitted below, and suggested at the hearing of the appeal, that the knowledge of the insurer was the knowledge of the employer, but s.122 imposes a personal obligation with penal sanctions. In my opinion the employer itself must become aware of the worker's recovery or partial recovery. It is not sufficient that Dr Fitzgerald's report was made available to the insurer and that Dr Strauss reported to it.

227. I do not overlook Dr Fitzgerald's conflicting series of medical certificates. It was conceded that they had not been brought to the attention of the respondent until April 1992. Even without reference to them, the appellant's claim fails on the facts.

230. A notice of contention was filed on behalf of the respondent under Rule 64.17(5). It foreshadowed two principal contentions. The first was that s.122 did not confer upon a worker any right of action for breach of statutory duty. The second was that the section did not apply at all where there had been a mutual termination of the relationship of employer and employee. Questions were also raised, at the hearing of the appeal, about the Crown Proceedings Act 1958 and the availability of declaratory relief against the respondent in lieu of the orders referred to in [44] above. The conclusions I have reached on the appellant's case make it unnecessary to consider those contentions or questions, although I had done so before reconsidering the significance of the medical reports.

233. One cannot but feel sympathy with the appellant, whose resignation was fairly clearly a product of his illness, but for the foregoing reasons I agree that the appeal must be dismissed.