Hynes v Hynes [2007] VSCA 7

ASHLEY JA for the Court (ASHLEY and REDLICH JJA and BELL AJA) :

1 Before the Court is a case stated by the County Court pursuant to s 76 of the County Court Act 1958. In the factual setting which we shall outline in a moment, the opinion of the Court is sought as to the interrelationship between Part 6 of the Transport Accident Act 1986 ("the TA Act") and Parts VB and VBA of the Wrongs Act 1958 - Part VB having been inserted by the Wrongs and Other Acts (Public Liability Insurance Reform) Act 2002[1] ("the 2002 Act") and Part VBA having been inserted by the Wrongs and Limitation of Actions Acts (Insurance Reform ) Act 2003[2] ("the 2003 Act"). The two questions framed for this Court's opinion - which enquire, in effect, whether inhibitions imposed upon common law damages claims and awards by Parts VBA and VB respectively apply to the proceeding brought by the plaintiff - arise in the following setting.

2 On 19 November 2002, Peter Hynes (conveniently, "the defendant") released the radiator cap of his motor vehicle. Hot water escaped from the radiator. It struck Diane Hynes (conveniently, "the plaintiff") and caused her injury. The incident happened in Euroa.

3 On 16 May 2005 the plaintiff filed a writ in the Country Court, seeking damages from the defendant for personal injuries suffered by reason of his alleged negligence. The injuries which she alleged were burns on her back, left shoulder, left side of the face and scalp; residual scarring and disfigurement; and psychological upset.

4 The solicitor to the Transport Accident Commission filed a defence dated 15 September 2005 on behalf of the defendant. We need not refer to the detail in that defence, for it was supplemented by an amended defence dated 3 May 2006. By the latter, the occurrence of the incident was admitted, as was negligence "for the purposes of this proceeding only". Injuries were not admitted. Then followed what is presently pertinent:

"4. Further:

a. the accident was not an incident directly caused by the driving of a motor vehicle and therefore was not a 'transport accident' as that term is defined in section 3 of the Transport Accident Act 1986; and

b. this proceeding was commenced by generally endorsed writ filed 24 February 2005.

5. By reason of the matters alleged in paragraphs 4(a) and (b) above, Parts VB and VBA of the Wrongs Act 1958 apply to this proceeding.

6. The plaintiff is precluded by section 28LE of the Wrongs Act 1958 from recovering damages for non-economic loss as she has not suffered a significant injury as that term is defined in section 28LF of the Wrongs Act 1958."

5 Paragraph 4 was a replication, in substance, of paragraph 6 of the original defence. To that defence the plaintiff had filed a reply, in which the allegations made by paragraph 6 were admitted.

6 Paragraphs 5 and 6 of the amended defence were similar to, but not identical with, paragraphs 7 and 8 of the original defence. The plaintiff, by her reply to the first defence, had joined issue with the allegations made by paragraphs 7 and 8. We mention the reply, although it addressed the original defence, because the matters it raised, for practical purposes, should be considered to be the plaintiff's response to the comparable allegations made by the amended defence. The matters which she had pleaded in reply in that connection were relevantly these:

"4. At all relevant times the defendant was the owner and driver of the motor vehicle.

5. Immediately prior to the accident the defendant had driven the motor vehicle during which he heard a knocking in the engine.

6. The plaintiff's injuries arose out of the use of the motor vehicle.

7. The defendant is entitled to indemnity pursuant to s.94 of the Transport Accident Act 1986 ("the Act") in respect of injuries, loss and damage sustained by the plaintiff by the Transport Accident Commission.

8. The plaintiff joins issue with the assertions in paragraphs 7, 8, [9 and 10], the sections relied upon having no application to the proceeding by reason of s.28C(2)(b), s. 28LC(2)(b) and s.45(1)(a) of the Wrongs Act, the plaintiff's claim for damages, recovery of non-economic loss and award of damages being one to which Part 6 of the Act applies."

7 The order stating a case for the opinion of this Court was made on 11 May 2006. A number of facts were agreed between the parties. They included -

"11. The defendant was the owner of the motor vehicle.

12. The defendant admits, for the purposes of the proceeding, that the accident was caused by his negligence.

13. The accident was not an incident directly caused by the driving of a motor vehicle, and therefore was not a 'transport accident' as then defined in s.3 of the Transport Accident Act 1986.

14. However, any injury suffered by the plaintiff as a result of the accident was caused by or arose out of the use of the motor vehicle and the Transport Accident Commission ("the Commission") is therefore liable to indemnify the defendant pursuant to section 94(1)(a) of the Transport Accident Act 1986.

15. The plaintiff commenced the proceeding by generally endorsed writ filed 24 February 2005.

17. For the purposes of Part VB of the Wrongs Act 1958, the damages claimed in the proceeding include 'personal injury damages.'

18. For the purposes of Part VBA of the Wrongs Act 1958, the damages claimed in the proceeding include damages for 'non-economic loss'."

8 The questions stated for the opinion of this Court were these:

A. Is the award of personal injury damages claimed in the proceeding excluded from the operation of Part VB of the Wrongs Act 1958, by virtue of s.28C(2)(b) of the Wrongs Act 1958?

B. Is the claim for recovery of damages for non-economic loss excluded from the operation of Part VBA of the Wrongs Act 1958, by virtue of s.28LC(2)(b) of the Wrongs Act 1958?"

9 The plaintiff contended that each question should be answered yes. The defendant contended the contrary.

10 The questions raise issues of statutory construction. The answers begin with identification of the principally relevant provisions.

The Transport Accident Act 1986

11 The right to recover common law damages for injuries or death "as a result of a transport accident" is conferred by Part 6 of the TA Act.

12 Section 93(1) of the TA Act, as is well-known, precludes recovery of damages for injury to or death of a person as a result of a transport accident except in accordance with the section. With respect to persons injured, the section sets up three so-called gateways. The initial requirement for access to any of the gateways is that the person has been injured as a result of a transport accident.[3] Thereafter, the putative claimant must establish that he or she has suffered a "serious injury".

13 If a gateway is accessed then, again as is well-known, various restrictions apply to the amount of damages recoverable, the method of assessment of damages, and so on. Nothing need be said about those provisions.

14 The parties approached this matter on the common footing that s 93 has nothing to say about the plaintiff's claim. Indeed, to emphasize the point, the plaintiff made no attempt to access any of the s 93 gateways.

15 The parties' common ground was correctly adopted. That is so because s 93 applies where a person has been injured (or dies) as a result of a "transport accident". That term is relevantly defined this way -

"S.3(1) In this Act -

---

'Transport Accident' means an incident directly caused by the driving of a motor car or motor vehicle ..."

The circumstances in which the plaintiff was injured did not fit that definition.

16 It follows that s 93 did not inhibit the plaintiff making a claim for damages in respect of injuries allegedly suffered on 19 November 2002.

17 Then it is necessary to notice s 94 of the TA Act. Sub-section (1)(a) says this:

"(1) The Commission is liable to indemnify -

(a) the owner or driver of a registered motor vehicle in respect of any liability in respect of an injury or death of a person caused by or arising out of the use of the motor vehicle in Victoria or in another state or in a Territory".

18 It is apparent that s 94(1)(a) looks at the topic of "legal rights outside" the TA Act from a perspective different to s 93. It is concerned with indemnification of an owner or driver[4] of a motor vehicle, whereas s 93 is concerned with the circumstances in which a person injured as a result of a "transport accident" is to be entitled to recover damages from such an owner or driver. Of this distinction, relied upon by the defendant, more later.

19 The next thing to notice is that the circumstances in which indemnity must be given under s 94(1)(a)[5] are broader than the circumstances in which s 93 is called into play. That is, s 94(1)(a) provides that the Transport Accident Commission is liable to indemnify an owner or driver of a registered motor vehicle -

• In respect of an injury to or death of a person caused by or arising out of the use of a motor vehicle.

20 The parties agreed, and rightly so, that although the circumstances in which the plaintiff suffered injury were not a "transport accident", nonetheless the plaintiff had suffered injury "caused by or arising out of the use of a motor vehicle". The last-mentioned concept does not convey the immediacy of relationship between driving and injury which is dictated by the phrase "directly caused by the driving of a motor vehicle".

21 The wider reach of s 94(1)(a) also appears from the words, twice used, "in respect of". As has often been said, they are ordinarily the language of broad connection.[6]

22 Pausing for a moment, it is clear enough that s 94(1)(a), although including within the indemnity cases where a plaintiff recovers damages in accordance with s 93, extends the indemnity to a wider class of case. It would extend, for example, to damages recovered by a person for injury caused by or arising out of the use of a motor vehicle although such injury was not the result of a transport accident - that is, this case. It would also extend to the liability of an owner or driver in a recovery action brought by another party made liable to a plaintiff in respect of injury or death - whether the same resulted from a transport accident or rather fell into the broader description of injury or death caused by or arising out of the use of a motor vehicle.[7] It would also extend to the liability of the owner or driver for damages in respect of injury to a person suffered out of Victoria - any such liability, and its extent, depending upon the laws of the State or Territory where the pertinent incident occurred.

23 Next, whilst s 94(1) addresses what might be called the ordinary reach of indemnity, the section has a much wider content. Thus -

• It addresses the effect upon indemnity of the transport accident charge not having been paid.[8]

• It provides that indemnity is not to be given if liability is cast upon an owner or driver as the result of a transport accident occurring in the course of an organized motor vehicle race or the like.[9]

• It gives, in certain circumstances, a right of recovery by an injured person directly against the Commission.[10]

• It provides for recovery against the Commission where an owner or driver in respect of whose liability the Commission must give indemnity cannot be identified, is dead, or - if a corporation - has been wound up.[11]

• It empowers the Commission to undertake the settlement of claims against owners and drivers, and to defend or conduct proceedings in the name of the owner or driver.[12]

24 We will refer to other provisions of Part 6 later in these reasons. As with s 94, it will be seen that they address a variety of issues.

The Wrongs Act 1958

Part VB

25 Part VB of the Wrongs Act provides, inter alia , that -

• Damages " includes any form of monetary compensation".

• The Part "applies to an award of personal injury damages[13] except an award that is excluded by sub-s.(2)".

• "An award to which Part 3, 6 or 10 of the Transport Accident Act 1986 applies" is excluded from the operation of Part VB.

• The maximum amount of damages for "non-economic loss"[14] is $371,380.

26 Other provisions were inserted into Part VB by Act Nos. 60 and 103 of 2003, and the transitional provisions were amended and extended. It is not now necessary to refer to those changes.

27 It will be necessary to return to Part VB. But three observations can immediately be made. First, it is concerned with awards of personal injury damages, not with claims for damages of such a kind. Second, the word "damages" is given what this Court described in Esso Australia Pty Ltd v Robertson[15] as an "expanded" meaning, by contrast with the "ordinary" meaning given that word in Part VBA.[16] Third, it is a corollary to the matter just mentioned, although "personal injury damages" are defined to mean damages relating to injury or death "caused by the fault of another person", s 28C(2) excludes from the operation of the Part awards of "personal injury damages" which are not of that character at all. So there are excluded awards of compensation under the Accident Compensation Act 1985 and under a number of other sections of a similar kind.[17] Thus, for instance, "a sum payable under a superannuation scheme or any life or other insurance policy",[18] and "an award to which Part 3 ... of the Transport Accident Act 1986 applies".[19] The common characteristics of these disparate "awards" - if they can be so described[20] - is that they require no proof of fault. But, as will later be seen, that is not so in respect of all the categories of awards to which s 28C(2) applies.

Part VBA

28 Part VBA of the Wrongs Act is headed "Thresholds in Relation to Recovery of Damages for Non-Economic Loss". The following features of the Part should be mentioned.

29 First, "injury" and "non-economic loss" are defined in the same language as in Part VB.[21]

30 Second, s 28LC(1), provides that -

"This part applies to claims for the recovery of damages for non-economic loss, except claims that are excluded by sub-s (2) or (3)".

It therefore focuses, contrast Part VB, upon claims rather than awards.

31 Third, the claims which are excluded from the provisions of Part VBA are, except for classes of claims excluded by regulations,[22] categorized by s 28LC(2). Paragraphs (a)-(d) of that sub-section generally replicate - except for reference to "claim" rather than "award" - s 28C(2)(a)(b) and (c).[23] In particular, s 28LC(2)(b) excludes from the application of Part VBA -

"A claim to which Part 3, 6, or 10 of the Transport Accident Act 1986 applies".

32 Part VBA at least implies, by references to "fault", that "claims for the recovery of damages for non-economic loss" are intendedly fault-based. That is so although "fault" is defined in the same way as in Part VB.

33 Fourth, by s 28LE a person is not entitled to recover damages for non-economic loss -

"...unless the person injured has suffered significant injury".

The term "significant injury" is defined.[24] There follows, as is customary in legislation of this kind, the development of a regime by which impairment is to be assessed. Again as is customary, the statutory regime is both difficult to understand and very likely difficult for a person to satisfy given the "threshold level" of "impairment".

34 Fifth, Division 4 of Part VBA sets up what is described as the "Procedure for Claim for Non-Economic Loss". Although s 28LE speaks of a person not being entitled to recover damages for non-economic loss unless the person has suffered significant injury, Division 4 makes it clear enough that obtaining a relevant assessment, or its functional equivalent, will ordinarily precede commencement of a proceeding.[25] Note also the document or documents which must be filed in Court before the determination of a claim.[26]

35 Sixth, s 28LZQ sets out transitional arrangements. We need not refer to their detail. It is not in debate that Part VBA has potential application to the plaintiff's claim.

36 In all, and despite a number of likely problems in its working out, the intended effect of Part VBA is evidently that recovery of damages for non-economic loss is to be precluded in personal injuries claims except when an assessment of impairment at or above the threshold level is obtained, or some step is taken which is the functional equivalent of obtaining such an assessment - that is, unless the claim is one which is excluded from the application of the Part.

The application of Parts VB and VBA in the circumstances of this case

37 It is common ground that the plaintiff took no steps to obtain an assessment of impairment before she commenced her proceeding. Nor, it is common ground, did she take any other step which could have relieved her from the necessity of obtaining such an assessment.

38 The questions which therefore arise are these. First, is the plaintiff precluded from recovering damages for non-economic loss because she has not complied with the requirement set out in Part VBA? That depends upon the meaning of s 28LC(2)(b) of the Act and Part 6 of the TA Act. Is the plaintiff's claim for damages a claim "to which Part ... 6 ... of the Transport Accident Act applies"? Second, if the plaintiff is not precluded from recovering damages for non-economic loss, is the maximum amount of damages which could be awarded the amount fixed by s 28G? That depends upon the proper meaning of s 28C(2)(b) of the Act and Part 6 of the TA Act. These questions reflect, though in reverse order, the two questions set out in the case stated.

The second question in the case stated

39 Though framed as the second question in the case stated, the question whether the plaintiff is precluded from claiming non-economic loss damages at all logically comes first.

40 It will be recalled that s 28LC(2)(b) excludes from the operation of Part VBA a claim to which "Part 3, 6 or 10" of the TA Act applies. Those Parts of the TA Act may be considered discretely.

41 Part 3 could not apply in the plaintiff's case. The no-fault compensation for which it provides is available to the victims of "transport accidents".[27] The plaintiff was not such a victim.

42 Likewise, Part 10 could not apply. It is concerned with the payment of no-fault compensation in respect of injury or death "caused by or arising out of the use of a motor car" before the commencement of the no-fault provisions contained in Part 3 of the Act; and with common law proceedings arising out of incidents of the kind described.

43 In two of the three circumstances contemplated by s 28LC(2)(b), then, the claim by the plaintiff to recover damages from the defendant does not have the protection of the exclusion set out in that provision. But that leaves open the question whether the plaintiff's claim against the defendant is a claim to which Part 6 of the TA Act applies.

44 In our opinion, the exclusion set out in s 28LC(2)(b) does apply. The consequence is that the plaintiff may bring her claim for non-economic loss despite her non-compliance with the regime set up by Part VBA. The following matters bear upon our conclusion.

45 First, s 28LC(2) focuses upon claims for the recovery of damages for non-economic loss which are external to legislation described in paragraphs (b), (c) and (d). Section 28LC(2)(b) is not to be read as if any claim there appearing is to be equated with a claim under any of Parts 3, 6 and 10 of the TA Act. That is, s 28LC(2)(b) should be read as -

"a claim for the recovery of damages for non-economic loss to which Part 3, 6 or 10 of the Transport Accident Act 1986 applies".

46 It was an important part of the defendant's submissions - particularly as they were initially advanced - that, within Part 6 of the TA Act, s 93 relates to claims, the recovery of damages, and awards of damages; but that s 94 does not, being couched in the language of liability to indemnify. The argument ran, in effect, that reference in s 28LC(2)(b) to Part 6 of TA Act must be seen as a reference to s 93. But when s 28LC(2)(b) is read as it should be, the words "to which" and "applies" gain prominence. There is thus a required relationship between the claim external to Part 6 and Part 6 itself, expressed in terms that Part 6 must apply to that claim. Read naturally, Part 6 at least applies to such a claim -

•

if the claim itself is permitted and regulated by Part 6 - as by s 93, and the sections which build upon it;

•

because Part 6 provides for the means whereby damages recovered in such a claim are to be paid by indemnification of the driver;

•

because Part 6 provides for recovery against the Commission direct of the amount of a judgment entered against the driver of a motor vehicle, and recovery against the Commission in the situations described in ss 94(7) and 96.

47 Second, counsel for the defendant, as it seemed to us, retreated somewhat from his submission which sought to highlight the importance of s 93 by emphasizing that it was there that the language of claims, recovery of damages, and awards was to be found, and by contrasting its language with the language of s 94. The retreat was dictated by the language - with respect to statutory compensation - of Parts 3 and 10 of the Act. They make no use[28] of s 93 type language. In our opinion, the defendant's argument that s 28LC(2)(b) should be given the confined operation which we have mentioned was thereby weakened.

48 Third, it is true that the structure of Part 6 of the TA Act is different to the structure of Part 3. The latter is concerned to specify the bases of qualification of entitlement to payments of the no-fault kind, exceptions to the broadly-stated bases of entitlement, and methods of quantification of entitlement. Because such payments must be made by the Commission, and because no question arises of indemnification of a driver in respect of judgment entered in a common law proceeding against that person, there is nothing like s 94 in Part 3. The reference in s 28LC(2)(b) to a claim to which Part 3 applies makes sense in the absence of a replica of s 94. It makes sense to the extent that, in a damages claim permitted and regulated by s 93, the fact that payments have been made under Part 3 will be in point.[29] But it does not follow, because the reference to Part 3 in s 28LC(2)(b) makes sense in the absence of a replica of s 94, that s 28LC(2)(b) must be read as excluding the application of s 94 when considering what is meant by a claim to which Part 6 applies. Whether s 94 falls within or outside the reference to Part 6 must depend on the language of s 28LC(2)(b) and the structure of Part 6.

49 Fourth, Part 10 of the TA Act is mainly concerned with statutory payments. In that connection, what we have said in connection with Part 3 equally applies. Part 10, however, also deals with common law actions. There are within it provisions which inhibit such action, or which modify the damages which might ordinarily be recovered.[30] There are also provisions which relate to "Third Party Insurance".[31] There is not, so far as we can see, a replica of s 94(1). But part of the claim and recovery regime under the Motor Car Act 1958, which we discuss later in these reasons in the context of Part 6, is substantially reproduced in ss 152(3) and 153-164. Those sections, as seems to us to accord with their common intent, are not artificially boxed as relating to "claims and recovery" on the one hand, and "indemnity" on the other. In the event, so far as Part 10 has similarities with Part 6, it seems to us to assist the plaintiff's case.

50 Fifth, the defendant relied upon s 28LC(2)(c) of the Wrongs Act, which refers to a claim to which Part IV of the Accident Compensation Act 1985 applies. Counsel submitted that the liability of the Victorian WorkCover Authority to indemnify employers is found in the Accident Compensation (WorkCover Insurance) Act 1993, not in Part IV of the Accident Compensation Act. Counsel's point was, as we understand it, that a claim for the recovery of damages for non-economic loss may be excluded from the operation of Part VBA without the pertinent legislation saying anything about the obligation to indemnify. This was an extension of his argument founded on Parts 3 and 10 of the TA Act.

51 It is true that Part IV of the Accident Compensation Act, which deals both with the entitlement of a worker[32] to accident compensation, and also with a worker's common law right of action, contains no exact counterpart of s 94(1) of the TA Act - although some reference to the insurance situation is made in ss 124, 125, 125A - particularly sub-ss (1), (2), (3), (6), and (7) - and 125B. Despite those few provisions, however, counsel for the defendant was correct in submitting that it is the WorkCover Insurance Act which primarily provides for indemnification of employers.[33] But all that shows, as with Part 3 of TA Act, is that s 28LC(2) can operate without indemnity provisions being included within the described part of a particular statute.

52 Sixth, the consequence of a conclusion that a claim such as that brought by the plaintiff is excluded from the operation of Part VBA of the Wrongs Act is that, in a few cases, where a person's injuries are caused by or arise out of the use of a motor vehicle - that is, where such injuries are not the result of a transport accident - a person will be able to pursue a common law claim for non-economic loss without having to face either the problem of accessing a s 93 gateway or of meeting the "significant injury" test. It might also be argued that this would create disconformity with the situation which arises under Part IV of the Accident Compensation Act; for there, again, preclusions and/or limitations exist with respect to common law proceedings. But we do not accept that a different regime, which arises from construction of different provisions, should be said to create a disconformity, or should tell against the apparent construction of a particular provision.

53 The same may be said of the circumstance that the regime imposed by Part VBA would have variable application according to whether a person's injury was caused by or arose out of the use of a motor vehicle registered in Victoria[34] or of a vehicle registered interstate; or according to whether a person's injury was caused by or arose out of the use of a Victorian-registered vehicle or alternatively was caused in circumstances giving rise to the liability of an occupier. We can accept, as counsel for the defendant submitted, that the Parliament intended to create a consistency of approach to certain types of damages claims when it amended the Wrongs Act in 2002 and 2003. But the question of statutory construction depends upon the language of the statute, read in context.[35] Stingel v Clarke,[36] cited by defendant's counsel, shows that "extrinsic materials may be useful as an aid to deciding the meaning of [such] language", but it also shows the problem of focusing on the intention of Parliament as revealed, or as may be supposed, from consideration of extrinsic material. In the present case, also, as will be seen, there are reasons why the provisions of Part VBA might apply in an occupier's liability case, but not in a case of the present kind.

54 Seventh, although s 94 is generally couched in the language of liability to indemnify, that is not entirely so. Often enough it uses the language of recovery. See, for instance sub-ss (3), (4), (7) and (9). Moreover, as we have already noted, s 94 in part extends the ordinary right of recovery of damages which an injured plaintiff would enjoy against a negligent driver. See, in that connection, sub-s (3) - which is a modern version of s 47(1) of the Motor Car Act 1958;[37] and sub-s (4) - which is the modern equivalent of s 48 of the Motor Car Act. Each of those sub-sections, in extending the circumstances in which an injured person can recover damages, is not much unlike s 96, the content of which, broadly, is an amalgam of ss 49 and 50 of the Motor Car Act - the sections which provided for a nominal defendant[38] who might be sued in certain circumstances. Section 96, which pertains to injury or death resulting from a transport accident, supplements s 93. It is difficult to see why it should be regarded as different in kind to s 94(3) or (4). Indeed, counsel for the defendant submitted that a s 96 claim is a s 93 claim. If the defendant's submissions were correct, either ss 94(3) and (4) and 96 would have to be regarded as different in kind; or else s 94 would have to be notionally broken up into different parts for the purposes of s 28LC(2)(b) of the Wrongs Act. But the defendant did not submit that s 94 should be viewed other than as an entire provision.

55 To the same end, s 94(10) is generally applicable to claims for damages under Part 6. If s 94 was read indivisibly, and the plaintiff's claim for damages was held not to be one to which Part 6 applies, then what could be the application of s 94(10) in such a case?

56 Eighth, we agree with the submission of plaintiff's counsel that the amendments to the Wrongs Act effected by Parts VB and VBA, so far as those amendments are presently relevant, were not directed to matters covered by statutory schemes of insurance. Rather, they relevantly sought to address difficulties in obtaining, and the cost of obtaining, general insurance - insurance, for instance, of the professional indemnity and public liability kinds. It is notorious that such difficulties were reported before the introduction of the amendments. So a construction which yields the outcome that the amendments have nothing to say about claims for damages, in cases where any damages awarded or recovered will be paid out of a statutory scheme, is consistent with the focus of the amendments - which is not to construe the relevant provisions, bearing Stingel in mind, by focusing upon the revealed or supposed subjective intention of Parliament.

57 Ninth, it is a corollary of what we have just said, a person such as the plaintiff does not have an entitlement to statutory payments. Nonetheless, such a person may pursue a claim for common law damages which, if successful, must be satisfied out of the statutorily generated fund. It is then understandable that s 93 does not apply in such a case and - consistently with a mischief which the relevant amendments to the Wrongs Act sought to redress - that the reference in s 28LC(2)(b) to claims to which Part 6 apply should be read as extending to a claim such as that brought by the plaintiff.

58 Tenth, counsel for the defendant submitted that to read the reference to Part 6 in s 28LC(2)(b) as picking up every section within Part 6 would make no sense. He referred to sections which are of the claw-back kind. But this argument had a contradictory element to it. For it was at the heart of the defendant's case that some but not all of the sections within Part 6 were captured by the reference to that Part in s 28LC(2)(b). If that were accepted, the key question would remain whether there was a sufficient nexus between a common law claim and a provision of Part 6 - the necessary nexus being found in the verb "applies". The verb is one in general usage, but it must be given a contextual meaning. So read, there seems to us to be a difference in kind between, for instance, ss 94 and 104.

59 Eleventh, this Court recognized in Esso[39] that Parts VB and VBA have a different purpose and content. Even if, which we do not consider to be the case, the construction and operation of s 28C(2)(b) and s 28LC(2)(b) did not coincide, it would not be a reason for abandoning our preferred construction of the latter.

60 Twelfth, counsel for the defendant correctly accepted that the amendments to the Wrongs Act were disentitling in character. They reflected the working-out of Parliament's intent to modify existing common law rights. Accepting also that unambiguous language was the touchstone whether a disentitling purpose had been achieved,[40] counsel argued that the effect of s 28LC(2)(b) was relevantly clear in his client's favour. We cannot accept that submission. What we have already said concerning the construction of that subsection should show why that is so. If, contrary to our opinion, the issue of construction does not stand in the plaintiff's favour, then we think it is at least doubtful.

61 Finally, for completeness, we should refer to a submission made for the plaintiff which we do not accept. Counsel submitted that, if s 28LC(2)(b) was read so that Part 6 did not apply to the plaintiff's claim, then the relationships established by that Part between an injured person, a negligent driver, and the Commission would be abolished. But that is not so. The defendant contended simply, in the particular context of the exclusion set up by s 28LC(2)(b), that the plaintiff's claim to recover damages was not a claim to which Part 6 applied. It was not the necessary corollary of that argument, assuming its acceptance, that Part 6 would not operate, compatibly with Part VBA, with respect to the plaintiff's claim.

The first question in the case stated

62 We have already made a number of observations about Part VB of the Wrongs Act.[41] What we now say builds upon those observations.

63 The definition of "damages", as this Court pointed out in Esso, is very wide. It is apt to describe awards both of common law damages and of monetary compensation of other kinds. On a natural reading of its words, s 28C(2) appears to mean, in part, that the inhibiting provisions of the Part are not to apply to a variety of "awards" of statutory compensation. That is so although the making of such an "award" might be a purely administrative decision.[42] Whether the subsection should be so read is perhaps put in doubt by the definition of "personal injury damages" in s 28B, and by the language of the key operative provision - that is, s 28D. The doubt exists despite the expansive definition of "court" in s 28B.[43] But the question need not be decided, because we think it is clear that s 28C does apply, at least in some instances, to a common law award of damages. So, for example, an "award" of statutory compensation under either of Parts 3 or 10 of the TA Act can be contrasted with a common law award under either of Parts 6 and 10. Equally, an award to which Part 4 (sic) of the Accident Compensation Act applies might be an award of statutory compensation or an award of common law damages. Likewise, probably, the kind of award contemplated by paragraph (a) of s 28C(2); and, more doubtfully, the kind of award described in paragraph (d).

64 In the event, "award" where used s 28C(2) in the context of Part 6 of the TA Act is to be understood to refer to an award of common law damages. The question is then whether Part 6 "applies" to such an award. In our opinion, that question should be answered in the affirmative. The considerations to which we referred in connection with s 28LC(2)(b), making adjustment to allow for the focus of s 28C(1) and (2) being upon an "award" rather than a "claim", are no less applicable. If anything, we consider that it should be the more readily concluded that the purely indemnifying provisions of Part 6 - upon which the defendant focused - apply to an award of common law damages in a claim of the kind brought by the plaintiff.

65 The result is, by the application of orthodox principles of statutory construction, that awards made in favour of a small class of common law claimants will be unaffected by inhibitions upon damages, and by the application of a particular discount rate - matters at the heart of Part VB. It is not in point whether that outcome should be accounted "desirable" - a matter about which, even having regard only to circumstances mentioned in these reasons, opinions might greatly differ.

Orders

66 Consistently with our reasons, we answer each of the two questions in the case stated, yes.

[1] No 49 of 2002; and thereafter amended by Acts Nos 60 and 103 of 2003.

[2] No 60 of 2003; and thereafter amended by Act No 103 of 2003.

[3] See s 93(2), (3)(a), (4)(a).

[4] For the sake of convenience, I will refer hereafter only to a driver.

[5] The same is the case with s 94(1)(b).

[6] See, for instance, Trustees Executors & Agency Co. Ltd v Reilly [1941]VLR 110 at 111 per Mann CJ, cited by Taylor J in State Government Insurance Office (Queensland) v Crittenden [1966] HCA 56; (1966) 117 CLR 412 at 416. But context may have a limiting impact. See State Government Insurance Office v Rees and another (1979)144 CLR 549 at 553-554 per Stephen J and at 561 per Mason J.

[7] See, by way of example, s 94A of this Accident Act.

[8] Sub-section (2).

[9] Sub-section (3).

[10] Sub-sections (3), (4), (5) and (6).

[11] Sub-sections (7), (8), and (9).

[12] Sub-sections (10, (11), and (12).

[13] Defined by s 28B to mean damages that relate to the death of or injury to a person caused by the fault of another person.

[14] Which term is defined by s 28B.

[15] [2005] VSCA 138

[16] Ibid at [27].

[17] Section 28C(2)(c)-(l).

[18] Section 28L(2)(M).

[19] Section 28C(2)(b).

[20] An issue which we later, though shortly, address.

[21] Section 28LB.

[22] See s 28LC(3).

[23] There is also an alteration, in the case of the reference to the Accident Compensation Act, from "Part 4" to "Part IV". The latter is correct, but why - except in the interests of accuracy - should it be thought desirable by the Parliament that amendments be consistent?

[24] By s 28LF.

[25] See, for instance, s 28LV. The procedure set out in s 28LZN is to apply in special cases.

[26] Section 28LZM.

[27] See s 35.

[28] Or nearly so.

[29] See, for instance, s 93(11) and (11A).

[30] See s 150 and Division 3.

[31] See Division 2.

[32] And a deceased worker's dependants.

[33] The situation of self-insurers, see Part 5 of the Accident Compensation Act, need not be separately considered.

[34] In respect of which a transport accident charge had been paid.

[35] CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 per Brennan CJ, Dawson, Toohey and Gummow JJ.

[36] [2006] HCA 37; (2006) 80 ALJR 1339 at 1348, [26] per Gleeson CJ, Callinan, Heydon and Crennan JJ; and see also per Kirby J at 1362, [117], although his Honour was addressing a different point.

[37] Here and hereafter, we refer to the Motor Car Act in its 1958 form.

[38] As to which, see also s 53 of the Motor Car Act.

[39] Supra, at [27].

[40] As to which see Pearce & Geddes, Statutory Interpretation in Australia, 6th Edition, 2006, para 5.29; and discussion of a related issue at para 5.24.

[41] At [26]-[28].

[42] Section 28LC(2)(m) provides the clearest example.

[43] We should add that the Second Reading Speech - Hansard, Council, 10 October 2002, p208 - appears to have proceeded on the basis that Part VB was directed to capping, and otherwise modifying, court awards.