The basis upon which damages are to be assessed
39 This accident happened off the coast of Queensland and the parties invited me to approach the matter therefore upon the basis that it occurred in Queensland. How then are damages to be assessed?
40 I am satisfied that the status of the plaintiff on the "Tagula Bay" was that of employee. For reasons I shall state later, I find that the plaintiff was employed at the relevant time by the third defendant. I find that the plaintiff was working under a contract of service rather than a contract for services. Had the accident happened in New South Wales, the provisions of the Workers Compensation Act, 1987 would govern the assessment of damages against her employer.
41 The plaintiff was not, of course, engaged in New South Wales but in Queensland. Neither was she required to work in New South Wales but in Queensland. There is no evidence to suggest that there was in place a policy of insurance insuring the plaintiff's employer against liability to provide compensation benefits to the plaintiff under the New South Wales Workers' Compensation Act .
42 Exhibit 1 discloses that in January 1992 the third defendant had its registered office at "The Meadows Convenience Centre, Shop 10, 63 Karawatha Street, Buderim" in the State of Queensland and that its principal place of business was at 24 Poinciana Avenue, Mooloolaba, Queensland.
43 Exhibit K, being the agreement whereunder the third defendant operated the "Tagula Bay", identified the proper law governing the agreement as the law of Queensland and stated a Queensland address for the third defendant.
44 What links the plaintiff's accident to New South Wales is simply that the plaintiff returned to New South Wales after her accident, had part of her treatment in this State in Wollongong and therefore suffered part of her damage in New South Wales.
45 There have been a number of decisions in the past decade or so which have addressed the problem that arises in the present case.
46 In Breavington v Godelman (1988-89) 169 CLR 41 the High Court was concerned with a case involving a collision in the Northern Territory at a time when all parties were residents in the Northern Territory. However later the plaintiff moved to Victoria and brought proceedings there. The issue that arose was whether Northern Territory legislation precluded the plaintiff from recovering damages other than for pain and suffering and loss of the amenities of life. The trial judge ordered that a defence in reliance upon provisions of the Northern Territory legislation be struck out because the law to be applied was the lex fori, that is the law of Victoria. On appeal to the Full Court of the Supreme Court of Victoria, the trial judge's decision was reversed. The plaintiff appealed to the High Court, arguing that the law of Victoria was to be applied and that the law of the place where the tort had happened, the Northern Territory, was irrelevant. The appeal was dismissed.
47 Because the reasons of the justices of the High Court differed in Breavington it is not easy to distil a common principle from the various judgments. Subsequently in Byrnes v Groote Eylandt Mining 10 MVR 297 the decision in Breavington was considered. In his judgment Kirby P reviewed the various judgments in Breavington , observing at 301:
"Because of the differences in the reasoning of the justices it is not easy to derive the holding in Breavington which is binding on this, as on other Australian courts."
48 Kirby P favoured the approach that Mason CJ had adopted in Byrnes when the Chief Justice rejected the argument that the principles for the assessment of damages should be regarded as procedural law and be governed by the law of the forum. The Chief Justice considered the measure of damages was a question of substantive law and this was the approach which found favour with Kirby P but the President remarked the Chief Justice's approach was not followed by the other justices of the High Court in Breavington .
49 On the other hand Hope A-JA observed, concerning the decisions of the High Court in Breavington (at 314-315):
"The judgments of the members of the court arrived at this conclusion in varying ways, but all held that the law of the lex loci delicti, that is Northern Territory, and not lex fori, that is the law of Victoria, applied as regards the damages which the plaintiff might recover. An approach adopted by some members of the court was to adopt the principles of private international law previously applied in such a case to the requirements of the federal system such as exists in Australia, in order, inter alia, to prevent forum shopping. For this purpose, even if principles as to damages were part of procedural law as opposed to substantive law for ordinary private international purposes, they were to be regarded as part of the substantive law in the adaptation of those principles to the States and Territories of Australia."
50 On the above analysis of Hope A-JA, the principles of the assessment of damages were to be regarded as part of the substantive law.
51 However there then followed the decisions of the High Court in McKain v R.W. Miller & Co (SA) Pty Limited (1991) 174 CLR 1 and in Stevens v Head (1992) 176 CLR 433. Since the decisions in these two cases, it seems to be settled that, prima facie at least, the quantification of damages is governed by the law of the forum.
52 In McKain the principles relating to interstate torts were defined by the majority of the court (at 39):
"A plaintiff may sue in the forum to enforce a liability in respect of a wrong occurring outside the territory of the forum if - 1. the claim arises out of circumstances of such a character that, if they had occurred within the territory of the forum, a cause of action would have arisen entitling the plaintiff to enforce against the defendant a civil liability of the kind which the plaintiff claims to enforce; and 2. by the law of the place in which the wrong occurred, the circumstances of the occurrence gave rise to a civil liability of the kind which the plaintiff claims to enforce."
53 Later in Stevens a plaintiff injured in a motor vehicle accident in New South Wales claimed damages in Queensland and the judge at the trial assessed damages according to Queensland law and did not apply the provisions of s 79 of the Motor Accidents Act which govern the assessment of damages in respect of motor accidents in proceedings in New South Wales. The High Court, by majority, determined that approach was correct and that once, consistently with McKain , an action was maintainable, the quantification of damages was to be determined by the law of the forum.
54 In their joint judgment in Stevens , Brennan, Dawson, Toohey and McHugh JJ said at 456-457:
"In determining whether, by the lex loci, the relevant facts give rise to a civil liability of the kind which the plaintiff seeks to enforce, the courts of the forum distinguish between substantive and procedural laws. Procedure is governed exclusively by the laws of the forum, but the substantive laws of the place of the tort determine whether, by those laws, there exists a civil liability of the kind which the plaintiff seeks to enforce. In McKain, it was held that a South Australian law which imposed a limitation on the time within which to bring an action in the courts of that State for damages for a tort committed within that State but which did not extinguish the cause of action was not a substantive law which precluded the bringing of an action in the courts of New South Wales for damages for a tort committed in South Australia. The majority followed a line of authority ((1991) 174 CLR at 40-43) which distinguished between a statute of limitation which does no more than cut off resort to the courts for the enforcement of a claim and a statute which extinguishes civil liability and destroys a cause of action. The former is classified as a procedural law, the latter as substantive."
55 Their Honours later went on to say, as to s 79 (at 460):
"It follows that s.79 of the Motor Accidents Act is not to be construed as containing substantive provisions for the purposes of the conflict of law rules governing the assessment of damages for extraterritorial but intranational torts. Adopting the distinction between heads of damage and the quantification of damages in respect of heads of damage, s.79 is a law with respect to quantification. Therefore it is not the law which a Queensland court applies in assessing damages for non-economic loss suffered by a plaintiff who was injured in an accident occurring in New South Wales… Double actionability (in the sense explained in McKain) operates satisfactorily, with respect to causes of action; with respect to the quantification of damages, no law other than the lex loci can work effectively."
56 Following Stevens v Head , at least in the absence of any relevant statutory provision to the contrary, the law of the forum governs the assessment of damages, but the substantive laws of the lex loci have their role in determining whether there is a civil liability in the person sued.
57 The provisions of Pt 5 of the New South Wales Workers' Compensation Act in their application to the assessment of damages in proceedings in New South Wales are by analogy to the scheme under the Motor Accidents Act to be regarded as procedural. Indeed, the full court of the Federal Court so held in John Pfeiffer Pty Ltd v Rogerson (unreported, 9 July 1998). However, Mr King submitted that even if the law governing the assessment of damages is to be classified as procedural, I should still assess damages without reference to the Workers' Compensation Act, 1987 as amended. He submitted that I should adopt that approach in any event, by the application of the Jurisdiction of Courts (Cross Vesting) Act, 1987 , and he referred to an interlocutory application earlier made in this court in these proceedings.
58 After the originating process had been served in this cause, at a time when there were nine defendants, application was made by one of those defendants, supported by most of the other defendants, for the transfer of this cause to Queensland pursuant to s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross Vesting) Act, 1987. Newman J dismissed the application, and it is plain from a reading of his Honour's judgment that the judge was influenced in so doing by the fact that most of the plaintiff's treatment was carried out in New South Wales and that her indigent circumstances would have made it difficult for her to sue in Queensland. In the circumstances no order was made by his Honour other than the order for costs. Had an order for transfer been made, then of course damages would have been assessed without reference to the New South Wales workers' compensation legislation.
59 Mr King submitted on behalf of the plaintiff that I should approach the matter upon the basis that this Court has jurisdiction under the Jurisdiction of Courts (Cross Vesting) Act and by reason of s 4, in conjunction with s 11(1)(c), I should apply the law of Queensland to the assessment of damages, considering it appropriate in the circumstances to do so.
60 Mr Longhurst, on behalf of the first and third defendants, adopted Mr King's submissions under the Jurisdiction of Courts (Cross Vesting) Act .
61 Mr Mescher and Mr Stevens in their respective written submissions urged me to take a different approach. They both submitted that the proper application of s 11 of the Jurisdiction of Courts (Cross Vesting) Act attracts the application of Pt 5 of the Workers' Compensation Act .
62 Section 11(1) of the statute provides:
"Where it appears to a court that the court will, or will be likely to, in determining a matter for determination in a proceeding, be exercising jurisdiction conferred by this Act or by a law of the Commonwealth or a State relating to cross-vesting of jurisdiction:
(a) subject to paragraphs (b) and (c), the court shall, in determining that matter, apply the law in force in the State or Territory in which the court is sitting (including choice of law rules);
(b) subject to paragraph (c), if that matter is a right of action arising under a written law of another State or Territory, the court shall, in determining that matter, apply the written and unwritten law of that other State or Territory; and
(c) the rules of evidence and procedure to be applied in dealing with that matter shall be such as the court considers appropriate in the circumstances, being rules that are applied in a superior court in Australia or in an external Territory."
63 It would, in my view, be an odd and unsatisfactory result if damages were required to be assessed in this case by reference to the Workers' Compensation Act, 1987 (NSW), not only because the accident did not happen in this State but the services of the plaintiff were not engaged here. Moreover, there is no evidence to suggest that the employer/defendant had a policy of insurance complying with the legislation in New South Wales, or that it ever contemplated the need for such a policy. It did not employ workers in this State and it did not carry out its operations in this State. The plaintiff was not employed in New South Wales nor was it in contemplation that she would be required to perform any part of her contract of service in New South Wales. Accordingly, if the statute would otherwise govern the assessment of the plaintiff's damages, and the discretion under s 11(1)(c) of the cross vesting statute was enlivened, I would regard it as appropriate to order that the rules of procedure (governing the quantification of damages) of the State of Queensland apply to the assessment, so as to avoid the application of the statute.
64 However I do not consider that it is correct to proceed on the basis that s 11(1) of the cross vesting statute has become applicable. Newman J made no order under the cross vesting legislation, and in my opinion this Court is not strictly hearing this case by reason of jurisdiction extended to it under the Jurisdiction of Courts (Cross Vesting) Act at all. The Supreme Court of New South Wales has jurisdiction to hear this case independently of the cross vesting legislation. Much of the plaintiff's harm attracting an entitlement to damages has been suffered in New South Wales. More fundamentally though, by reason of effective service of the statement of claim upon the defendants, each of the defendants filed appearances and in due course a defence. No challenge was made to the jurisdiction of this Court. The application under the cross vesting legislation did not challenge the jurisdiction of this Court, but sought transfer to Queensland on the basis that the interests of justice called for a transfer on the well settled principles identified in Bankinvest AG v Seabrook & Ors (1988) 14 NSWLR 711.
65 For these reasons I have concluded I should not, and indeed I cannot, make the order Mr King and Mr Longhurst have asked me to make to apply the procedural laws of Queensland. In my opinion, following Stevens v Head , damages are to be assessed by the application of the appropriate law of New South Wales.
66 It does not follow however that the Workers' Compensation Act of 1987 necessarily applies. That statute does not govern the assessment of damages in all cases. It only applies, speaking generally, to work related injuries addressed by the statute.
67 To begin with, the Act has no application to cases not involving "injury" as defined in s 4. For relevant purposes, s 4 defines "injury" as meaning "personal injury arising out of or in the course of employment.
68 However, the ambit of the statute to "injury" as defined extends outside New South Wales only in the circumstances contemplated in s 13(1):
"(1) If:
(a) an employer has a place of employment in New South Wales, or is for the time being present in New South Wales, and there employs a worker, and
(b) any such worker while outside New South Wales receives an injury under circumstances which, had the injury been received in New South Wales, would entitle the worker to compensation in accordance with this Act,
the injury is an injury to which this Act applies, and compensation is payable accordingly."
69 Because the plaintiff's employer has not been proved to have had a place of employment in New South Wales at any relevant time, and because it has not been proved to be present in New South Wales and there to have employed the plaintiff, s 13(1) has no proven application in this case.
70 In my opinion it follows that Pt 3 of the Workers' Compensation Act which provides for compensation benefits has no application and had the plaintiff sought to recover benefits under that provision from her employer, her application would have been doomed to fail.
71 Part 5 makes provision for common law damages in a modified form only in respect of "an injury to a worker" (s 151E(1)(a)). However s 151 expressly preserves common law liability not affected by the Act:
"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 -
(a) otherwise expressly provides."
72 The definition of "injury" in s 4, which I have set out above, applies to Pt 3 and Pt 5 alike, so that when Pt 5 introduces modified common law damages, it does so "for personal injury arising out of or in the course of employment" , but there is nothing in Pt 5 to indicate that the provisions of that part apply to injuries beyond those contemplated in Pt 3. It follows, in my opinion, that Pt 5 can and does only apply to injury sustained outside New South Wales if:
"(a) an employer has a place of employment in New South Wales, or is for the time being present in New South Wales, and there employs a worker, and
(b) any such worker while outside New South Wales receives an injury under circumstances which, had the injury been received in New South Wales, would entitle the worker to compensation in accordance with this Act,
Subparagraph (a) has not been satisfied here.
73 In this case, since the plaintiff has sued her employer and parties other than her employer, were the statute to apply, it would be necessary to consider whether s 151Z of the statute applies, calling for separate assessment of damages and giving rise to the complexities and anomalies considered by Allen J in Leonard v Smith (1992) 27 NSWLR 5 and by me in Smith v Leighton Contractors & Anor , (unreported, 19 June 1998).
74 However s 151Z, in addressing this possibility of recovery against both the employer and a stranger begins:
" If the injury for which compensation is payable under this Act was caused under circumstances creating a liability in some person other than the worker's employer to pay damages in respect of the injury the following provisions have effect:"
75 The reference to compensation being payable under the Act is a reference to compensation under Pt 3. Compensation was plainly not payable to this plaintiff under Pt 3 because the plaintiff's injuries were sustained outside New South Wales and did not attract an entitlement to benefits under s 13(1). It seems to me that s 151Z affords a further clear indication, if such were needed, that the provisions of Pt 5 do not attach to "an injury" sustained in circumstances that gave rise to no right to compensation under Pt 3.
76 I refer also to Pt 7 Div 1 of the statute, which deals with insurance. Section 155 renders it compulsory for an employer to obtain and maintain in force a statutory policy. Section 155(1) provides:
"An employer (other than a self insurer) shall obtain from a licensed insurer, and maintain in force, a policy of insurance that complies with this Division for the full amount of the employer's liability under this Act in respect of all workers employed by the employer and for an unlimited amount in respect of the employer's liability independently of this Act…"
77 The sub-section provides for a penalty for the failure to obtain and maintain such a policy of 200 penalty units or imprisonment for six months or both.
78 It would be an extraordinary result if the legislature intended to render an employer which is not conducting business in this State and which is not employing a worker to carry out duties here, liable to an offence for not maintaining a policy complying with Pt 7. Such a requirement by the legislature would be invalid. In order to attract the provisions of the Act, the legislature would be required to introduce some element so as to sufficiently connect the compensable injury to the State: see the discussion on s 13 in Mills Workers' Compensation Practice at p 1850.
79 In my opinion the Workers' Compensation Act does not govern the assessment of damages in this case because I do not find on the evidence that the plaintiff sustained her injuries in circumstances attracting liability in her employer under s 13(1).
80 I conclude that damages are to be assessed by reference to common law principles as applicable in New South Wales.