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.