Humphreys v Mulco Tool & Engineering Pty Ltd - [2006] NSWCA 355 - NSWCA 2006 case summary — Zoe

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Humphreys v Mulco Tool & Engineering Pty Ltd

[2006] NSWCA 355

Court of Appeal (NSW)|2006-09-21|Before: Ipp JA, McColl JA, Basten JA, Byron DP

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Source facts

Court

Court of Appeal (NSW)

Decision date

2006-09-21

Before

Ipp JA, McColl JA, Basten JA, Byron DP

Source

Original judgment source is linked above.

Judgment (12 paragraphs)

[1]

Background 109 The Appellant claims that he was injured at work, on 6 June 2001. Notice of injury was given to the employer on the same day and a claim for compensation was made at that time. 110 Pursuant to s 151C, as in force at all relevant times, a person to whom compensation is payable under the Workers Compensation Act 1987 (NSW) ("the 1987 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": s 151C(1). 111 With respect to the Appellant's injury, that period did not expire until 5 December 2001. Nevertheless, on 21 November 2001, the Appellant commenced proceedings for damages in the District Court. Those proceedings were ultimately dismissed on 12 March 2003, by an arbitrator. The reason for the dismissal was the failure to comply with s 151C(1) of the 1987 Act. 112 On 27 November 2001 certain amendments made by the Workers Compensation Legislation Further Amendment Act 2001 (NSW) ("the 2001 Amendment Act") commenced. It will be necessary to say more about those amendments, and the transitional provisions in relation to them, shortly. 113 On 31 March 2004 the Appellant lodged a claim for non-economic loss compensation, payable under ss 66 and 67 of the 1987 Act. The employer argued that the commencement of proceedings for damages in the District Court had constituted an election and, pursuant to the repealed s 151A of the 1987 Act, the Appellant was now precluded from making a claim for "permanent loss compensation", which was defined in the old s 151A to mean compensation under Part 3, Division 4 of the 1987 Act, including claims under sub-ss 66(1) and 67(1): see old s 151A(1). On 5 December 2005 Deputy President Byron accepted the employer's argument and made an order which stated: "Mr Jeffrey Humphreys is precluded from commencing proceedings for permanent loss compensation under sections 66 and 67 of the Workers Compensation Act 1987 by reason of his election to commence proceedings to recover damages in the District Court of New South Wales on 21 November 2001." 114 The Deputy President concluded that this result was dictated by the decision of this Court in Gordon v Berowra Holdings Pty Ltd (2005) 62 NSWLR 427, which held that commencement of proceedings in breach of s 151C(1) did not constitute a nullity, with the result that, if no objection were raised by the employer in a timely fashion, the claim might properly proceed to a judgment in favour of the plaintiff. The conclusion reached in this Court has since been confirmed by the High Court in Berowra Holdings Pty Ltd v Gordon (2006) 80 ALJR 1214.

[6]

(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. 119 The replacement of s 151A had two separate effects. First, the repeal removed the requirement for election contained in the old provision; secondly, the insertion of the new provision imposed a statutory limitation in respect of the recovery of damages. Clause 9(1) concerns the amendment so far as it is "in respect of the recovery of damages": it does not purport to operate in respect of the recovery of compensation. 120 That distinction is emphasised by sub-cl 9(3) which, together with its note, provides: (3) An amendment made by Schedule 1.1 to the Workers Compensation Legislation Further Amendment Act 2001 does not apply in a case where a person has elected to claim permanent loss compensation under section 151A before the commencement of the amendment. Note . This will enable such an election to be revoked in the circumstances provided by section 151A and common law damages recovered on the basis of the law in force at the time of the original election. 121 This provision does not in terms provide for the effect of an election made by the commencement of proceedings, where those proceedings have not resulted in the recovery of damages. However, it is based upon an assumption that an election to claim compensation would operate as a bar to the right to recover damages and that the repeal would otherwise have removed the right of revocation with respect to that form of election, contained in old s 151A. The assumption is, therefore, consistent with the view that an election to claim damages will continue to operate as a bar to a claim for compensation, despite the repeal of the former s 151A(2) and (3). This conclusion is consistent with the general rule contained in s 30 of the Interpretation Act 1987 (NSW) that a repeal will not affect the previous operation of the Act, or anything duly suffered or done under the old provision: s 30(1)(b). Accordingly, the immunity from a claim for compensation, enjoyed by the employer immediately before the repeal of the old s 151A, will remain unaffected by the repeal. The first condition for validity of the Commission's decision is satisfied.

[7]

Condition 2: was the "election" effective? 122 Section 151A, as in force prior to the commencement of the 2001 Amendment Act, relevantly provided as follows: 151A Election - damages or "Table of Disabilities" compensation … (2) A person to whom compensation is payable under this Act in respect of an injury is not entitled to both: (a) permanent loss compensation in respect of the injury, and (b) damages in respect of the injury from the employer liable to pay that compensation, but is required to elect whether to claim that permanent loss compensation or those damages. (3) The person makes that election (or is taken to have made that election): (a) by commencing proceedings in a court to recover those damages or by accepting payment of those damages (in which case the person ceases to be entitled to permanent loss compensation in respect of the injury), or (b) by commencing proceedings in the Compensation Court to recover that permanent loss compensation or by accepting payment of that permanent loss compensation (in which case the person ceases to be entitled to recover damages in respect of the injury). … (4) An election is irrevocable, except that an election to claim permanent loss compensation may be revoked with the leave of the court given in accordance with this section. 123 The statutory context for this provision was provided by ss 151C and 151D, which, so far as relevant read as follows: 151C(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. (2) Despite subsection (1), the person is entitled to commence court proceedings against an employer if either of the following occurs: (a) the employer denies all liability in respect of the injury, (b) the employer admits partial liability in respect of the injury but the person is dissatisfied with the extent to which liability is admitted. 151D(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. 124 Accepting that the proceedings commenced by the Appellant were not a nullity, as held by Berowra Holdings, there is a separate question as to whether, by commencing proceedings in contravention of s 151C(1), the Appellant in fact made a statutory election for the purposes of s 151A(3)(a). A literal reading of that provision taken in isolation would suggest that he did. He commenced proceedings in the District Court, which proceedings were dismissed, but which were legally effective to engage the jurisdiction of the Court. 125 However, reading ss 151A and 151C together, a different conclusion is open. The operation of s 151C(1) was noted in the joint judgment in Berowra Holdings, 80 ALJR 1214 at [35]: "Section 151C does not extinguish rights or create new rights. Rather, it postpones the remedy for the common law right to initiate proceedings in a court of competent jurisdiction. The 'right' which s 151C does confer is conferred upon the defendant employer and must be raised in accordance with a procedural rule pertinent to the particular court." 126 Thus, s 151C(1) is not expressed in terms of a prohibition: rather, it is expressed in terms of entitlement to commence proceedings, so that the prospective plaintiff, being a person to whom compensation is payable under the Act, "is not entitled to commence court proceedings for damages" until six months have elapsed since notice of the injury was given. The purpose of that section is also succinctly identified in the joint judgment in Berowra Holdings at [24]: "It may be accepted that the primary objective of s 151C is to encourage an injured worker to attempt in the first instance to satisfy his or her claim for damages by negotiation with the employer rather than by immediate recourse to litigation."

[9]

One effect of non-compliance may be a failure to engage s 151A(3)(a), even though the proceedings are not properly described as a "nullity". They are effective for some purposes, but not for others. 128 There are considerations which weigh against this approach. The first is the uncertainty of knowing whether an election has been made where proceedings were commenced within the six month period following notice of the injury, but where it is not known whether the employer will take objection. In other words, if the bar to entitlement is waived by the employer, the plaintiff becomes (retrospectively) a person entitled to commence proceedings, and their commencement becomes an effective election. Although avoidance of double recovery used to depend on s 151B and not upon the election, if the employer did not object to the contravention of s 151C(1), the commencement of the proceedings in the prohibited period must at some stage become an effective election. It might have been inconvenient not to know with certainty when the event which precluded a claim for permanent loss compensation crystallised. 129 However, the extent of the inconvenience should not be overstated. It is only the prejudicial effect to the employer which is of concern and the remedy for the uncertainty lay within its hands. Further, inconvenience to the employer (who would never suffer double recovery) may be offset by prejudice to the employee, who may be wholly deprived of compensation for his non-economic loss. 130 A second consideration is that the limitation period contained in s 151D adopts similar language to s 151C regarding the entitlement of the person to commence proceedings. It has been accepted that the commencement of proceedings after the expiration of the three year limitation period will amount to an effective election: indeed, that has been held to be the case even where proceedings were commenced out of time, pursuant to a grant of leave, which grant was reversed on appeal: see State of New South Wales v Connor [2003] NSWCA 200. However, that decision was based upon a line of authority in this Court dealing with cases where proceedings could be commenced only with leave of the Court: see Whisprun Pty Ltd v Sams [2002] NSWCA 394; Jol v State of New South Wales (1998) 45 NSWLR 283. As explained by Sperling J in Whisprun (Beazley and Heydon JJA agreeing) at [15]: "The purpose of s 151D(2) … is to preclude claims from being brought after the lapse of a specified time, otherwise than under the supervision of the court for cause shown. That purpose is equally well served by deciding the question of leave after the proceedings are commenced as by deciding the question before the proceedings are instituted."

[10]

An important distinction between ss 151C and 151D is that the latter contained an exception where leave of the Court is obtained, whereas the former, the section presently under consideration, did not. 131 As was explained in Whisprun at [16] and reiterated in Gordon v Berowra Holdings, 62 NSWLR 427 at [40]-[41], even in relation to similar provisions, the effect of non-compliance can only be determined by reference to the specific legislative purpose: see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [93]. As noted above, not only is the operation of the two sections dissimilar, but the purpose is quite different. A standard form of limitation period is designed to avoid stale claims. The six month initial period of compulsory delay has, in a sense, the opposite purpose - namely, to avoid overhasty filing of litigation before opportunities for a negotiated settlement have been explored: Berowra Holdings, 62 NSWLR 427 at [46] (Mason P). There is thus no reason why non-compliance with s 151C should have had the same effect, in relation to the old s 151A, as non-compliance with s 151D. 132 A third consideration is the possibility of a contrary line of appellate authority dealing with s 151C. However, the Court was assured that the only case which addressed the operation of the provisions currently in question was a decision of the Compensation Court (Neilson J) in Deng v GMS Fulfilment Services Ltd (2003) 25 NSWCCR 446. That decision placed significant weight on the analogous situation under s 151D and, for reasons noted above, such reasoning is not persuasive. 133 While much information is to be obtained from the historical exegesis in the judgment of McColl JA in relation to the statutory history of workers compensation legislation, in my view that history does not provide guidance in determining the precise matter of statutory construction raised by this appeal. 134 A construction which places a premium on the employee obtaining flawless legal advice (in an area where change is the norm) by putting in the hands of the employer a power immediately to strike out a claim for damages as invalid, but to rely upon the same claim as a valid election, precluding a claim for compensation, is unattractive. It goes further than promoting a policy against double claims (let alone double recovery) and effectively precludes litigation of any claim. Such a construction does not further any discernable statutory purpose: it tends to undermine the statutory entitlements to compensation for non-economic loss. There being no power to undo an ill-advised or mistaken commencement of proceedings, if there is a construction which avoids a blatant subjection of substantive rights to procedural precision, it should be preferred. 135 A purposive construction, giving effect to these considerations, requires that ss 151A and 151C be read together so that, taken as part of a statutory scheme, the prohibition in s 151C is given effect in s 151A as a limitation on the period within which an effective election can be made. Thus, the election made in the present case was not legally effective, because the Appellant was not at the relevant time a person entitled to make such an election, and is now entitled to pursue his claim for compensation, in accordance with the current law. 136 The appeal should be allowed and the decision of the Commission set aside. The Respondent should pay the Appellant's costs of the appeal. **********

Parties

Applicant/Plaintiff:

Humphreys

Respondent/Defendant:

Mulco Tool & Engineering Pty Ltd

Legislation Cited (4)

Workers Compensation Legislation Further Amendment Act 2001(NSW)

Workplace Injury Management and Workers Compensation Act 1998(NSW)

Workers Compensation Act 1987(NSW)

Interpretation Act 1987(NSW)

Cases Cited (41)

CITATION: Humphreys v Mulco Tool & Engineering Pty Ltd [2006] NSWCA 355 This decision has been amended. Please see the end of the judgment for a list of the amendments.

Asplundh Tree Expert (Australia) Pty Ltd v Robertson [2006] NSWCA 471 Australian Iron & Steel Ltd v Hoogland [1962] HCA 13; (1962) 108 CLR 471 Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; (2006) 80 ALJR 1214 Brighton Und Refern Plaster Pty Ltd v Boardman [2005] NSWCA 167 Brighton Und Refern Plaster Pty Ltd v Boardman [2006] HCA 33 Buck v Comcare (1996) 66 FCR 359 Burnett v Union Steamship Co of New Zealand Ltd (1936) SR (NSW) 119 Chang Jeeng v Nuffield (Australia) Pty Ltd [1959] HCA 40; (1959) 101 CLR 629 Coates v Commissioner for Railways (1960) 78 WN (NSW) 477 Coleman v Shell Company of Australia Ltd (1943) 45 SR (NSW) 27 Deng v GMS Fulfilment Services Ltd (2003) 25 NSWCCR 446 Electricity Commission of NSW v Yates (1991) 30 NSWLR 351 Gordon v Berowra Holdings Pty Ltd [2005] NSWCA 27; (2005) 62 NSWLR 427 Harbon v Geddes [1935] HCA 25; (1935) 53 CLR 33 CASES CITED: Harrison v Wythemoor Colliery Co Ltd [1922] 2 KB 674 Jol v State of New South Wales (1998) 45 NSWLR 283 Jones Bros Bus Company Pty Ltd v Baker; Wyong Shire Council v Graham (1992) 26 NSWLR 322 Latter v Shire of Muswellbrook [1936] HCA 70; (1936) 56 CLR 422 Mathisen v Wallarah Coal Company Ltd (1937) 37 SR (NSW) 530 O'Connor v S P Bray Ltd [1937] HCA 18; (1937) 56 CLR 464 O'Connor v S P Bray Ltd (1936) 36 SR (NSW) 248 Ostojic v Trazmet Pty Ltd [2005] NSWCA 145 Pye v Butterfield Cheese Factors Pty Ltd (1996) 39 NSWLR 425 Quigley v Australian Red Cross Society [1993] 9 NSWCCR 506 State of New South Wales v Connor [1999] NSWCA 251 State of New South Wales v Connor [2003] NSWCA 200 The State of New South Wales v Taylor [2001] HCA 15; (2001) 204 CLR 461 Union Steamship Co of New Zealand Ltd v Burnett [1937] HCA 19; (1937) 56 CLR 450 Whisprun Pty Ltd v Sams [2002] NSWCA 394

Statement of the case 6 The appellant was injured at work on 4 June 2001. He commenced proceedings to recover damages from the respondent in respect of his injuries in the District Court of New South Wales on 21 November 2001. The proceedings were commenced less than six months after notice of his injury was given to the respondent in contravention of s 151C(1) of the 1987 Act. 7 The appellant's proceedings were commenced in contravention of s 151C to seek to avoid the effect of the Workers Compensation Legislation Further Amendment Act 2001 (the "2001 Act") which relevantly took effect on 27 November 2001. It amended, inter alia, Part 5 of the 1987 Act in a manner which, as Sheller JA said in Clout Industrial Pty Ltd (in liquidation) v Baiada Poultry Pty Ltd [2004] NSWCA 89; (2004) 61 NSWLR 111 (at [3]) "severely curtailed the capacity of an employee to obtain damages from an employer …".

8 The respondent defended the District Court proceedings, relying (inter alia) upon the contravention of s 151C(1), a plea it was given leave to add by amendment to its defence on 4 April 2003, the first day of a hearing before an Arbitrator to whom the proceedings had been referred pursuant to the Arbitration (Civil Actions) Act 1983. The Arbitrator dismissed the proceedings on the basis that "by virtue of section 151C(1) of the Workers Compensation Act 1987, the Plaintiff was not entitled to commence this action on 23 [sic, this should be 21] November 2001." The dismissal was expressed to be without prejudice to the appellant bringing "any fresh action on the cause of action", but the appellant did not pursue that course. 9 On 31 March 2004 the appellant lodged a claim with the respondent's workers' compensation insurer for medical expenses and for "permanent impairment/pain and suffering" pursuant to ss 66 and 67 of the 1987 Act. On 21 May 2004 the insurer informed the appellant that liability was denied for the claim for "lump sum compensation" (meaning thereby the ss 66 and 67 claims) on the basis that by commencing the District Court proceedings he had made an election under s 151A. 10 On 7 July 2004 the appellant filed an Application to Resolve a Dispute in the Workers Compensation Commission. The dispute was identified, relevantly, as being that the insurer had not made a decision within one month of the degree of permanent impairment being fully ascertainable or two months of being given all relevant particulars about the claim. The respondent again disputed the appellant's entitlement to lump sum compensation on the basis that by commencing the District Court proceedings he had made an irrevocable election in accordance with s 151A, as in force at 21 November 2001. 11 The dispute was referred to an Arbitrator for determination. On 26 November 2004 the Arbitrator determined that the appellant could bring his claim for compensation pursuant to ss 66 and 67 of the 1987 Act. 12 The respondent sought, and was granted, leave to appeal against the Arbitrator's decision. The appeal was heard by Deputy President Gary Byron and determined on 5 December 2005: Mulco Tools & Engineering Pty Limited v Humphreys [2005] NSWWCCPD 146. Between the date of the Arbitrator's decision and the Deputy President's determination this Court handed down judgment in Gordon v Berowra Holdings Pty Ltd [2005] NSWCA 27; (2005) 62 NSWLR 427 in which it held that proceedings commenced in contravention of s 151C, if otherwise properly brought, engaged the jurisdiction of the court and were not a nullity. Gordon v Berowra Holdings Pty Ltd was followed in Brighton Und Refern Plaster Pty Ltd v Boardman [2005] NSWCA 167. Both decisions were upheld in Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; (2006) 80 ALJR 1214 and Brighton Und Refern Plaster Pty Ltd v Boardman [2006] HCA 33 respectively. 13 The Deputy President applied the Court of Appeal decisions and concluded (at [26]) that the District Court proceedings were "not a nullity and that the election to commence those proceedings was a valid election under s 151A(2) of the 1987 Act." He allowed the appeal, revoked the Arbitrator's decision and ordered: "Mr Jeffrey Humphreys is precluded from commencing proceedings for permanent loss compensation under ss 66 and 67 of the Workers Compensation Act 1987 by reason of his election to commence proceedings to recover damages in the District Court of New South Wales in 21 November 2001." 14 The appellant appeals from that decision pursuant to s 353 of the Workplace Injury Management & Workers Compensation Act 1998. He contends the Deputy President erred in law in finding that his commencement of proceedings to recover damages in contravention of s 151C(1) disentitled him from recovering compensation pursuant to ss 66 and 67 of the 1987 Act.

35 The remaining provisions in Division 2, ss 151B - 151D, provided: "151B Effect of recovery of damages from employer on payment of compensation. (1) If a person recovers damages in respect of an injury from the employer liable to pay compensation under this Act: (a) the person then 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 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. (2) This section does not apply to a person who recovers damages for non-economic loss in respect of an injury if the person does not recover any damages for economic loss in respect of that injury because of the operation of section 151H (No damages for economic loss unless injury serious). (3) A person who recovers damages for economic loss in respect of an injury but does not recover any damages for non-economic loss in respect of that injury because of the operation of section 151G (Damages for non-economic loss) is not prevented from recovering, and is not required to deduct under this section, any compensation under Division 4 (Compensation for non-economic loss) of Part 3 except compensation under s 67 (Compensation for pain and suffering). (4) In applying subsection (2) or (3) to a particular case: (a) the reason for the non-recovery of damages for economic loss or non-economic loss (respectively) must be solely the operation of section 151H or 151G (respectively), and not a combination of reasons (including, for example, a partial settlement or partial compromise of a claim); and (b) the amount of damages for non-economic loss applied in determining the operation of the threshold test in the relevant section must be calculated on the basis of the actual loss, and must not be reduced on the basis of any settlement or compromise or otherwise. 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. (2) Despite subsection (1), the person is entitled to commence court proceedings against the employer if either of the following occurs: (a) the employer denies all liability in respect of the injury, (b) the employer admits partial liability in respect of the injury but the person is dissatisfied with the extent to which liability is admitted. 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. (4) This section does not apply to the commencement of court proceedings in respect of a claim within the meaning of Pt 5 of the Motor Accidents Act 1988 or Chapter 5 of the Motor Accidents Compensation Act 1999." (emphasis added) 36 As I have noted, in Berowra Holdings Pty Ltd v Gordon (at [36]) the High Court held that proceedings commenced in contravention of s 151C were not a nullity, or invalid, but engaged the jurisdiction and procedural rules of the court. Fundamental to that decision was the conclusion (see Berowra at [35]) that s 151C does not extinguish the worker's common law right to sue the employer for damages in any court of competent jurisdiction, but barred the remedy. 37 Section 151D(2) operated in the same manner. The expiry of the three year period in s 151D(2) did not extinguish the employer's liability: Almario v Allianz Australia Workers Compensation (NSW) Insurance Ltd [2005] NSWCA 19; (2005) 62 NSWLR 148 at [26]-[29] per Ipp JA (with whom Hodgson JA and Hunt AJA agreed). Thus s 151D also barred the remedy, but not the cause of action. The court could give leave to commence proceedings out of time, both before the statute-barred proceedings were commenced and nunc pro tunc after their commencement: Whisprun Pty Ltd v Sams [2002] NSWCA 394.

38 The abolition of the common law right to recover damages from employees in respect of injuries for which employers were liable to pay compensation under the 1987 Act had applied to injuries suffered on or after 4pm on 30 June 1987, when the 1987 Act commenced: s 2(2); New South Wales Government Gazette 102, 17 June 1987. Accordingly the new Part 5 restored the common law right to damages albeit as modified, retrospectively to that date: Electricity Commission of NSW v Yates (1991) 30 NSWLR 351 at 354 per Handley JA (Clarke and Meagher JJA agreeing). In addition to the procedural modifications in Division 2, Division 3, Modified Common Law Damages, substantially modified damages a worker who suffered a work-related injury could recover from a negligent employer. The effect of the modifications was described by Handley JA (at 354) as follows: "…[T]he 1989 Act conferred retrospective common law rights which were significantly less advantageous than those the plaintiff would have enjoyed if the 1987 Act had never been passed. Section 151G governed the award of damages for non-economic loss. Subsection (1) provided that no damages are to be awarded for non-economic loss unless the injured worker's ability to lead a normal life is significantly impaired by the injury. Subsection (2) provided that the damages to be awarded should be a proportion of the maximum which might be awarded and initially this was fixed by subsection (3) at $180,000 which could only be awarded in 'a most extreme case'. Subsection (6) provided for a threshold of $75,000 below which no damages for non-economic loss were recoverable and shading-in provisions applied where the damages otherwise recoverable fell between $75,000 and $100,000. … While this appeal was pending Parliament again changed the law with retrospective effect. The Workers Compensation (Amendment) Act 1991 (the 1991 Act) was assented to on 26 March but Schedule 2 repealed s 151G(6) with effect from 1 February 1990 thus reducing the general damages threshold to $45,000 and the shading-in provisions to awards between $45,000 and $60,000. Section 151H(1) and s 151H(2) provide that no damages are awardable for economic loss unless the injury is serious. This was originally defined in relation to injuries between 30 June 1987 and 30 June 1989 as being one for which lump-sum compensation was awardable under s 66 which was not less than 60 per cent of the maximum or for which the damages for non-economic loss exceeded $100,000. The definition of 'loss' in s 65 allowed lump-sum compensation to be awarded for the permanent loss of the use or the efficient use of a part of the body." 39 I referred earlier to the 2001 Act, whose application the appellant sought to avoid by commencing his proceedings on 21 November 20021. Schedule 1.1 of the 2001 Act omitted ss 151G - 151I. A new s 151G was inserted which provided that the only damages which might be awarded were damages for past economic loss due to loss of earnings and damages for future economic loss due to the deprivation or impairment of earning capacity. A new s 151H provided that no damages might be awarded unless the injury resulted in the death of the worker or in a degree of permanent impairment of the injured worker of at least 15%, while a new s 151I capped the amount which could be recovered for past and future loss of earnings. After 27 November 2001 accordingly, a worker could no longer recover damages for non-economic loss from his or her employer in respect of a work-related injury and the right to recover damages for economic loss was severely circumscribed. 40 The 2001 amendments applied to the recovery of damages after their commencement even if the injury concerned was received before the commencement of the amendment, but did not apply in respect of the recovery of damages if proceedings for their recovery were commenced in a court before the commencement of the amendment: Sch 6, Pt 18C, cl 9(1): Asplundh Tree Expert (Australia) Pty Ltd v Robertson [2005] NSWCA 471.

Submissions on appeal 43 The appellant accepts that the District Court proceedings were not a nullity. He submits, however, that on an analysis of the doctrine of election (an analysis not undertaken in either written or oral submissions) and the "intention of workers compensation legislation", s 151A applies only to "validly commenced proceedings", rather than proceedings which, having been commenced in breach of s 151C, were susceptible to being struck out should the defendant raise the s 151C(1) contravention by way of defence. 44 The appellant argues that it was not the legislative intention to deny a worker his or her entitlement to lump sum compensation by commencing damages proceedings which contravened s 151C(1). He submitted that s 151C(1) was a procedural provision put in place to delay the expense of proceedings for the benefit of the defendant to encourage settlement negotiations. He argued that the respondent benefited from s 151C(1) as the worker had had to discontinue his District Court proceedings and ought not have a further benefit by denying the worker his lump sum benefits, otherwise available pursuant to the 1987 Act. He sought to rely on Quigley v Australian Red Cross Society [1993] 9 NSWCCR 506 at 516 where Manser J held that the expression "if a person commences proceedings …" in s 151V(2) of the 1987 Act contemplated "the commencement of proceedings which are valid proceedings". 45 The appellant also contends that prior to 27 November 2001 no worker who was injured after 27 May 2001 could institute proceedings for modified common law damages, unless the defendant waived compliance with s 151C(1). He argued that s 151A could not have been intended to operate in the manner found by the Deputy President "in a statutory regime that was to repeal Part 5" of the 1987 Act. 46 The appellant also advanced an argument which turned on the transitional provisions in cl 9(1), Sch 6, Part 18C of the 1987 Act. I agree with Basten JA's conclusion that cl 9(1) does not assist the appellant whose proceedings to recover damages were commenced prior to 27 November 2001, the date the new s 151A commenced. 47 The respondent submits that by force of s 151A the commencement of the District Court proceedings meant the appellant had elected to claim modified common law damages and that the effect of the election was to disentitle him from claiming permanent loss compensation pursuant to ss 66 and 67 of the 1987 Act. It contends the District Court proceedings were validly commenced and engaged the jurisdiction of the District Court, relying upon the line of authority which culminated in Berowra Holdings Pty Ltd v Gordon. 48 The respondent resists the argument that the appellant's "election" was not a "true election" as the appellant could not make a choice between "complete" rights because, as to damages, the claim was conditional upon whether or not the respondent waived reliance upon s 151C(1). The respondent also submitted that, in any event, the argument was unsound as s 151A is engaged at the moment of the commencement of proceedings. 49 The respondent submitted that s 151A identified the two rights available to a worker and, in effect, stipulated that they were inconsistent as a worker could not have access to both: cf Sargent v ASL Developments Ltd [1974] HCA 40; (1974) 131 CLR 634. The respondent also argued that s 151A created its own election regime and did not turn upon equitable principles of election.

Workers compensation election provisions 50 Statutory provisions requiring an election between entitlements to common law damages or workers' compensation have a long history in workers' compensation legislation both in England and Australia. The construction of such provisions has often produced "acute divisions of judicial opinion": The State of New South Wales v Taylor [2001] HCA 15; (2001) 204 CLR 461 at [46] per Kirby J.

51 In New South Wales, prior to the 1987 Act, the division of judicial opinion turned on the meaning of s 63 of the 1926 Act which, prior to 1953, provided: "63 (1) Nothing in this Act shall affect any civil liability of the employer where the injury was caused by the personal negligence or wilful act of the employer or some person for whose act or default the employer is responsible; (2) In such a case the worker may, at his option, proceed under this Act or independently of this Act, but he shall not be entitled to compensation under this Act, if he has obtained judgment against his employer independently of this Act." 52 Section 63 was "an attempt on the part of the State Legislature to restate the law relating to the double remedies of an employee against the employer": Harbon v. Geddes [1935] HCA 25; (1935) 53 CLR 33 at 40 per Rich J. It was substantially on all fours with s 1(2)(b) of the Workmen's Compensation Act 1906 (UK): Latter v Shire of Muswellbrook [1936] HCA 70; (1936) 56 CLR 422 (at 448) per Evatt and McTiernan JJ. The view which had been taken of the English provision was that "the object of the Act [was] not to protect the employer against double payments, but against double proceedings": Harbon v. Geddes (at 42) per Starke J. 53 The controversy concerning the interpretation of s 63 turned on the question of what conduct on the part of a worker would amount to an irrevocable exercise of the option to accept compensation to the exclusion of damages: Chang Jeeng v Nuffield (Australia) Pty Ltd [1959] HCA 40; (1959) 101 CLR 629 at 642 per Kitto J. An allied controversy concerned the extent to which a person, making an election between remedies at common law in lieu of statutory benefits, must be aware of the choice being made and of the considerations relevant to that choice, before it could be said that an "election", as contemplated by the statute, had been effected: State of New South Wales v Taylor (at [45]-[46]) per Kirby J.

54 The controversy also turned on the question whether a workman's s 63(2) option was "only exercised when he gets a final decision in his favour, and that he is not stopped from one set of proceedings by commencing other proceedings which are not continued, or by getting a decision against him from which he appeals, or by getting a decision in his favour, which is afterwards reversed" (the "double recovery" theory) and the view that "the object of the Legislature is … to prevent the employer from being subjected to the expense, trouble and inconvenience of two sets of proceedings" (the "double proceedings" theory): Harrison v Wythemoor Colliery Co Ltd [1922] 2 KB 674 at 697-698 per Scrutton L.J. 55 These issues were canvassed early in the history of the 1926 Act in four decisions of the High Court: Harbon v Geddes, Latter v Shire of Muswellbrook, Union Steamship Co of New Zealand Ltd v Burnett [1937] HCA 19; (1937) 56 CLR 450 and O'Connor v S P Bray Ltd [1937] HCA 18; (1937) 56 CLR 464. Burnett and O'Connor were handed down on the same day. Dixon J's interpretation of s 63 was completely at variance with the interpretation adopted by Latham CJ, Evatt and McTiernan JJ (Union Steamship Co of New Zealand Ltd v Burnett (at 460)); Starke J's view was also at odds with his brethren. 56 The fissures were exposed in Harbon v Geddes. In Starke J's view (at 42) "the object of the [1926] Act is not to protect the employer against double payments, but against double proceedings". Thus it was sufficient for a worker to have intimated a claim for compensation to the employer to have proceeded under the 1926 Act and lost the right to proceed independently of it. However, in his Honour's view (at 43) the effect of the last words of s 63(2) ("but … of this Act") was that if a worker proceeded independently of the 1926 Act but did not obtain a judgment against the employer, the worker did not lose the right to statutory compensation.

74 The effect of the 1953 amendment was to free s 63 of the 1926 Act "from all that was involved in the existence of an option"; "[t]henceforth a worker's rights under the Act were to be cumulative upon, instead of alternative to, any rights that he might have against his employer independently of the Act": Chang Jeeng v Nuffield (Australia) Pty Ltd (at 644) per Kitto J. In Australian Iron & Steel Ltd v Hoogland [1962] HCA 13; (1962) 108 CLR 471 (at 487) Windeyer J described the 1953 amendment as having "radically altered the law": "Since then an injured worker, instead of having to elect between taking compensation under the Act and pursuing to judgment an action for damages against his employer, has been able to do both. His rights under the Act are cumulative upon, not alternative to, his common law rights: but if he recovers judgment in an action against his employer further payments under the Act cease, and payments already received by him go in satisfaction of the judgment. This result was achieved by substituting a new subs (2) for the existing subs (2) of s 63 and by repealing s 63A. …" 75 Section 63(2) remained in the form it had reached by the 1953 amendment until the 1926 Act was repealed by the 1987 Act.

96 Pye v Butterfield Cheese Factors Pty Ltd (1996) 39 NSWLR 425 concerned the question whether a worker injured in the Australian Capital Territory in the course of his employment who, by virtue of s 13 of the 1987 Act was entitled to, and did, claim compensation under that Act, had made a s 151A election by commencing proceedings against his employer to recover damages in the ACT Supreme Court. The case concerned s151A as it stood prior to the 2000 amendment. The Court held that where a worker's claim for common law damages was brought in another jurisdiction which was both the forum and the place of the tort, the commencement of such proceedings was not an election for the purpose of s 151A(3)(a) the 1987 Act. Gleeson CJ said of s 151A: "The election to which s151A refers is an election to be made by a person who, by force of that section, is not entitled to both permanent loss compensation and damages. The legislative denial of the entitlement, and the requirement to elect, are the opposite sides of the one coin. … The requirement to elect is the corollary of the denial of the entitlement to sue for damages as well as to claim compensation. If the denial does not operate, neither does the requirement to elect." (emphasis added) 97 State of New South Wales v Connor [2003] NSWCA 200 concerned the question whether an injured worker who commenced proceedings in 1998 to recover damages against his employer after being given leave to do so by Hidden J pursuant to s 151D of the 1987 Act (a leave held by this Court to have been erroneous) was taken to have made an election for the purposes of s 151A as it stood prior to the 2000 amendment and had, therefore, lost his entitlement to claim permanent loss compensation. Sheller JA (with whom Hodgson and Santow JJA agreed) held that he had. As in Pye's case Sheller JA referred to the pre-1989 version of s 151A(3)(b) but nothing turns on that for present purposes. 98 The history of the matter is set out in Sheller JA's judgment. In short, in the first decision, State of New South Wales v Connor [1999] NSWCA 251, this Court held that Hidden J erred in interfering with Master Greenwood's discretionary refusal of the worker's s 151D application to extend the time for bringing common law proceedings pursuant to s 151D of the 1987 Act. The Court set aside Hidden J's orders and reinstated Master Greenwood's orders refusing the s 151D application. Prior to the Court of Appeal's decision the worker had filed his statement of claim in the Supreme Court on 29 December 1988. After the first decision the worker filed an application for determination for compensation under Pt 3 Div 4 of the 1987 Act for non-economic loss (s 66) and for permanent injuries based on 90% of a most extreme case (s 67) in the Compensation Court. The employer responded to that claim asserting that by filing his statement of claim to recover common law damages the worker had irrevocably elected pursuant to s 151A of the 1987 Act to claim damages in respect of the injury from the employer liable to pay that compensation and had thereby lost his entitlement to permanent loss compensation in respect of the injuries. 99 The worker then sought to reopen the first appeal to vary the orders of the Court to add orders revoking the leave granted by Hidden J ab initio, order that the commencement of the proceedings by filing the statement of claim pursuant to Hidden J's orders was "void, as being of no legal effect" and an order that "the statement of claim and the filing of the statement of claim are set aside ab initio." 100 Sheller JA said: "9 On their face the three orders now sought are unusual if not unprecedented and of little, if any, utility in overcoming the effect of Mr Connor's election to commence proceedings to recover common law damages. That election was made when Mr Connor commenced those proceedings. The irrevocable election springs from Mr Connor's act in doing so on 29 December 1998. … 11 Section 151A requires a person to whom compensation is payable under the Act in respect of an injury to elect whether to claim that permanent loss compensation or damages in respect of the injury from the employer liable to pay that compensation. The injured person is not entitled to claim both. ...In no circumstance does the Act allow revocation of an election to claim damages in respect of the injury from the employer. 12 If a person commences proceedings as contemplated by s151D within three years after the date on which the injury was received, that person runs the risk that the proceedings may fail on grounds that would not have precluded recovery of permanent loss compensation. In that case, the election having been made, permanent loss compensation, even if otherwise available, cannot be recovered. …once the person injured commences proceedings in a court to recover damages in respect of the injury, that person elects to follow that course and loses the right to claim permanent loss compensation." (emphasis added) 101 Ostojic v Trazmet Pty Ltd [2005] NSWCA 145 concerned the form of s 151A(3)(b) in force prior to the amendment effected by the 2000 Act. The issue was whether a worker who had sought to recover lump sums pursuant to ss 66 and 67 of the 1987 Act in respect of impairment to his neck, back and right leg as well as lump sum compensation for pain and suffering, but who recovered only a lump sum of $780 for partial loss of use of his left thumb, was debarred from pursuing a claim for damages against his employer at common law.

(1962) 108 CLR 471

(2006) 80 ALJR 1214

(1996) 66 FCR 359

(1959) 101 CLR 629

(2003) 25 NSWCCR 446

(1991) 30 NSWLR 351

(2005) 62 NSWLR 427

(1935) 53 CLR 33

(1998) 45 NSWLR 283

(1992) 26 NSWLR 322

(1936) 56 CLR 422

(1937) 56 CLR 464