Kotevski v Esselte Australia P/L

Hobbs v Costain Australia Limited (1995) 11 NSWCCR 56 University of New England v Larsen-Walsh [2000] NSWCA 363 CASES CITED: OP Industries Pty Limited v MMI Workers Compensation (NSW) Limited (1998) 17 NSWCCR 193 National Transport Insurance Limited v Chalker [2005] NSWCA 62

Boris Kotevski PARTIES: Esselte Australia Pty Limited

A: J E Rowe / J A Darvall COUNSEL: R: W Kearns SC

A: Markahm Geikie Farrugia, Liverpool SOLICITORS: R: Hicksons, Sydney

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40231/04 DC 231/01

TOBIAS JA YOUNG CJ in EQ BROWNIE A-JA

Tuesday 12 April 2005 BORIS KOTEVSKI v ESSELTE AUSTRALIA PTY LIMITED Judgment 1 TOBIAS JA: In this matter the appellant sued the respondent for damages in respect of injuries allegedly sustained by him as a result of the nature and conditions under which he was required to work whilst in the respondent's employ between 1988 and August 1999. 2 The appellant commenced his action by the filing of a statement of claim in the District Court on 22 November 2001. By its defence, the respondent relied upon s 151D(2) of the Workers Compensation Act 1987 (the Act) which provided as follows: "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 respondent submitted before the primary judge that the appellant was entitled to rely only upon injuries received by him within the three years prior to 22 November 2001, that is, on and after 23 November 1998. After considering the medical evidence and assuming, without actually deciding, that the evidence given on behalf of the appellant was to be preferred, the primary judge held that the injuries complained of by the appellant were in fact sustained prior to 23 November 1998. Accordingly, as the appellant had failed to satisfy his Honour on the balance of probabilities that he had sustained any injury for which he was entitled to damages after 23 November 1998, it was held that his action was statute barred by s 151D(2) of the Act. The primary judge therefore entered judgment for the respondent. It is from that decision that the appellant appeals to this Court. 4 Before the primary judge the appellant sought to meet the respondent's reliance upon s 151D by calling in aid s 15(1) of the Act which, relevantly, provides as follows: "(1) If an injury is a disease which is of such a nature as to be contracted by a gradual process: (a) the injury shall for the purposes of this Act, be deemed to have happened: (i) at the time of the worker's death or incapacity, or (ii) if death or incapacity has not resulted from the injury - at which time the worker makes a claim for compensation with respect to the injury, and (b) compensation is payable by the employer who last employed the worker in employment to the nature of which the disease was due." 5 It was common ground that the appellant was incapacitated for work on 13 August 1999. Accordingly, so the argument ran, s 15(1)(a)(i) deemed that date to be the date upon which the appellant's injury was received for the purpose of s 151D(2). It therefore followed that the proceedings were instituted within the relevant limitation period. 6 In support of the foregoing submission the appellant contended before the primary judge and this Court that the words in s 15(1)(a) "for the purposes of this Act" were unlimited in their scope and referred to the purposes of the Act as a whole including the purposes of Division 2 of Part 5 within which s 151D fell. On the other hand, the respondent contended that s 15 related only to a deeming of the date of the injury for the purpose of a claim for statutory compensation. It called in aid firstly, the fact that s 15 appears in Part 2 of the Act which is headed "Compensation - liability" and that s 15(1) makes specific reference to a worker claiming compensation with respect to the relevant injury: see s 15(1)(a)(ii) and (b). 7 It was further submitted that the other provisions in Part 2 were also wholly or in the main related to the payment of statutory compensation including, in particular, ss 16 and 17. Section 16, which relates to the situation where an injury consists in the aggravation, acceleration, exacerbation or deterioration of disease, is otherwise in identical terms to s 15. Section 17 follows a similar format in its relation to an injury constituted by loss of hearing. It is pertinent also to observe that the foregoing provisions were in the Act when it was originally enacted in 1987 when s 149, which commenced Part 5 of the Act and was headed "Common law remedies", in effect abolished the worker's right to recover common law damages from his or her employer in respect of any injury for which compensation was payable under the Act by that employer. This was remedied when the Act was amended in 1989 when Part 5 was replaced to provide for modified common law damages. 8 The respondent therefore submitted that the words "for the purposes of this Act" in its context referred to the purpose of a worker claiming statutory compensation under the Act. The primary judge accepted this submission in reliance upon the decisions of this Court in Hobbs v Costain Australia Limited (1995) 11 NSWCCR 56 and University of New England v Larsen-Walsh [2000] NSWCA 363. 9 In this Court the appellant submitted that the decisions in Hobbs and Larsen-Walsh supported his position as in those cases it was held that ss 17 and 16 respectively did not apply to deprive the relevant worker retrospectively of his common law right to damages for injuries receiving during the course of his employment. Accordingly, it was submitted that s 15 should apply in the present case in order to achieve the same result, namely, to avoid the appellant losing his common law right to damages by virtue of being statute barred under s 151D(2). 10 In oral submissions the appellant also relied upon the decision of this Court in OP Industries Pty Limited v MMI Workers Compensation (NSW) Limited (1998) 17 NSWCCR 193 where, by majority, it was held that the words "for the purposes of this Act" in clause 1 of Schedule 1 to the Act should not be narrowly construed so as to be confined to the provisions of the Act which related to the payment of statutory compensation. 11 Finally, the appellant submitted that, unless s 15 had the wide effect contended for, it would be difficult to apply s 151D(2) to an injury which was the subject of gradual onset particularly as ss 151G and 151H of the Act as it then stood, which provided thresholds and created tables for the calculation of claims, relied on the date on which the injury was received for the purposes of the assessment of damages under those provisions. 12 In Hobbs this Court was concerned with a claim for damages by a worker who had suffered hearing loss between 1961 and up to and after 30 June 1987. The question which arose in that case was whether a worker suffering from hearing loss, which was the result of negligent acts of his employer occurring prior to 4pm on 30 June 1987, could recover damages at common law for the losses and damages caused by those acts. The relevance of 4pm on 30 June 1987 was that pursuant to s 151U of the Act, Part 5 (which provided modified common law damages) did not apply to a cause of action in respect of an injury received by a worker at or before that time and date. Accordingly, if the injury was received prior to that date the unmodified common law rules relating to the assessment of damages applied. 13 Reliance was placed by the employer in Hobbs upon s 17 of the Act. Relevantly, that section provided that if an injury is a loss of hearing which is of such a nature as to be caused by gradual process, "for the purposes of this Act" the injury shall be deemed to have happened at the time when the worker gave notice of the injury which, in that case, was 27 July 1990. 14 Accordingly, it was submitted that the injury was deemed to have been received after 4pm on 30 June 1987 as a consequence whereof damages were to be assessed under the modified common law damages provisions of Part 5. 15 Cole JA, with whom Kirby P and Handley JA agreed, upheld the contentions advanced by the employer for the reasons expressed in those contentions. Relevantly it was contended that it could not have been the intention of the legislature enacting the 1989 amendments to the Act to have, in effect, discriminated against that category of workers constituted by those suffering from industrial deafness by placing them in a worse position in terms of the assessment of damages than other workers who had suffered an injury prior to 4pm on 30 June 1987. It was submitted that if s 17 were to have that effect, it would have provided so expressly. There was no justification for so construing the provisions of Part 5, so it was contended, "merely because of the deeming provisions in s 17, particularly where s 151 required that the liability of the employer for such common law damages, existing as it did independently of the Workers Compensation Act, continued unless it was affected 'expressly' by a statutory provision in the amended Act." 16 The employer's contention in that case continued in these terms: "Where s 17(1)(a) referred to 'for the purposes of this Act', the Legislature intended that section to have operation only in relation to claims for workers compensation. That was so because there was no need to give notice to complete a common law action for damages, and the section did not either expressly or by implication purport to deal with common law rights."

Cole JA expressly adopted that contention. 17 Nevertheless the appellant in the present case relies upon the following passages from Cole JA's judgment (at 64): "I do not think the first submission should be upheld. It may be accepted that usually an expression is to be given the same meaning throughout a statute unless the context otherwise requires. However, where to do so results in deprivation of an existing common law right to damages, and further involves such deprivation occurring retrospectively, and produces an injustice to a distinct category of persons, it is not to be presumed that the Legislature intended the expression to be given the same meaning so as to produce those effects … In my view the 1989 amending Act, and in particular the provisions of section 151U(2), make clear that it was not the intention of the Parliament to negate or deprive a worker of a complete cause of action for common law damages for injuries suffered resulting from events which occurred prior to 4.00pm on 30 June 1987. The consequence is that the appeal must be upheld and there be a new trial restricted to damages. It also follows that the regime of modified common law damages contained in Division 3 of Part 5 of the Act as introduced by the 1989 amending Act has no application to a claim for damages arising out of events which occurred prior to 4.00pm on 30 June 1987." 18 As I understand the appellant's submission based on the foregoing passages, it is contended that giving the expression "for the purposes of this Act" a wide meaning (meaning thereby the same meaning that it has when that phrase is used elsewhere in the Act) would save, rather than deprive, the appellant of his common law right to damages, albeit modified damages. In my opinion, such a submission turns the decision in Hobbs on its head. 19 Firstly, the appellant was unable to point to the use of the expression "for the purposes of this Act" in any other relevant part of the Act where it would naturally have the wider meaning contended for, namely, for the purposes of not only payment of statutory compensation but also payment of common law damages. On the other hand, senior counsel for the respondent provided the Court during the course of argument with a schedule of references to the expression "for the purposes of this Act" as well as the phrase "independently of this Act" and the phrase "for the purposes of this Act" in the Workplace Injury Management Act and Workers Compensation Act 1998 (the WIM Act). 20 Apart from ss 15, 16 and 17 of the Act and a number of clauses in Schedule 1 to the WIM Act in which the phrase "for the purposes of this Act" is used, none of the provisions referred to in the schedule could be construed as relating not only to the provision of statutory compensation but also to common law damages. Even then the various clauses of Schedule 1 of the WIM Act only have that wider meaning if the majority decision of this Court in OP Industries was correctly decided. 21 Secondly, as appears from the judgment of Handley JA in Larsen-Walsh, it is clear that the context in which s 15 appears in Part 2 of the Act is one that is solely concerned with the issue of statutory compensation. That is so not only with respect to the other provisions of Part 2 but also with the provisions of s 15(1) itself. In my opinion the appellant's contention would be wholly inconsistent with the internal provisions of that section. 22 Thirdly, had there been any doubt in the matter, it was put to rest by the decision of this Court in Larsen-Walsh. In that case, the worker was injured as a result of exposure to chemical and other fumes at the University's Art Department where she worked as a lecturer from 1972 to 1989. She successfully sued for damages, it being found that her exposure to fumes occurred both before and after 4pm on 30 June 1987. On appeal the University argued that the trial judge had erred in not assessing all her damages under the Act because s 16 deemed her injury to have occurred after the Act had commenced. The Court unanimously dismissed the appeal. The leading judgment was delivered by Handley JA with whom Spigelman CJ and Sully A-JA agreed. 23 Handley JA considered (at [9]) that the better view may have been that the worker in that case suffered from a disease which was contracted by a gradual process so that a case arose under s 15 of the Act. However, nothing turned on that as his Honour considered that there was no distinction between the two sections. 24 After referring to the judgment of Cole JA in Hobbs, his Honour dealt with the issue in the following terms (at [12]): "Earlier Cole JA had approved the submission by Mr McAlary that the deeming provision in s 17 'for the purposes of this Act' made that section relevant only for the purposes of determining liability for compensation. That section, for the purposes of s 151, did not deal, expressly or by implication, with common law rights. In my judgment this reasoning is directly applicable to s 16. That section contains numerous references to compensation, claims for compensation and to the Compensation Court which strengthens the conclusion drawn by this Court in Hobbs v Costain (Australia) Limited . See s 16(1)(a)(ii), (Claim for compensation), s 16(1)(b) (Compensation payable), s 16(2) (Claim, compensation, Compensation Court and contribution) … The appellant's first submission based on the 1987 Act as amended fails." 25 In my opinion, Larsen-Walsh is authority for the proposition that the deeming provision in s 16 of the Act does not deal, either expressly or by implication, with common law rights. The section was relevant only for the purposes of determining liability for statutory compensation. As Handley JA was of the view that s 15 was in identical terms to s 16, it follows that the decision governs the outcome of the present case. 26 Nevertheless, the appellant sought to rely upon the decision of this Court in OP Industries. That case did not involve a provision in Part 2 of the Act as did Hobbs, Larsen-Walsh and the present case. It concerned clause 1 of Schedule 1 to the Act (now Schedule 1 of the WIM Act) which was triggered by s 5. Those provisions were in the following terms: "5 Deemed employment of workers Schedule 1 has effect. Schedule 1 Deemed employment of workers

1. Workers lent or on hire (cf former s 6(1), def 'employer') if the services of a worker are temporarily lent or let on hire to another person by the person with whom the worker has entered into a contract of service or apprenticeship, the latter shall, for the purposes of this Act, be deemed to continue to be the employer of the worker while the worker is working for that other person." 27 Fitzgerald A-JA, with whom Beazley JA agreed, held that clause 1 of Schedule 1 applied to a claim by the worker in that case for common law damages. His Honour rejected the contention of OP Industries that the phrase "for the purposes of this Act" in clause 1 should be confined to the provisions of the Act which related to statutory compensation. 28 Meagher JA dissented. He was of the view that the effect of the statutory deeming was limited "to the purposes of this Act" and was intended to assist an injured worker to know which of several potential employers was liable to pay statutory compensation (not common law damages) under the Act. It could not, his Honour said (at 196 [9]) "be tortured into a provision depriving a worker of the exercise of his common law rights." 29 It is to be noted that Hobbs was not cited by this Court in OP Industries. Equally, OP Industries was not cited by the Court in Larsen-Walsh. 30 In my opinion, this Court's construction of clause 1 of Schedule 1 cannot govern its construction of s 15 of the Act. The context in which s 15 is to be found is entirely different. The respondent therefore submits that the decision in OP Industries is distinguishable from the present case and I agree with that contention. If it were otherwise, the respondent submits that the decision was wrongly decided. In my opinion there would also be substance in that submission. Consideration of the various provisions of Schedule 1 to the Act which relate to "deemed employment of workers" reveal that their context is the deeming of an employer in circumstances where compensation is payable under the Act: see clauses 3(5), 4(3), 5(2), 8(2) and 13(2). A similar reservation as to the correctness of OP Industries was expressed by Mason P (with whom myself and Grove J agreed) in National Transport Insurance Limited v Chalker [2005] NSWCA 62 at [75]. However, like Mason P, it is unnecessary to express any final view on that issue. 31 I can understand the convenience of applying s 15(1) to s 151D(2) to deem the date of incapacity to be the date of receipt of the injury where the injury is one of gradual onset as in the present case. However, I note two points. The first is that where in Part 5 of the Act the legislature has considered it necessary to provide for a form of deeming provision, it has done so expressly: see s 151W. The second is that where there is doubt as to the date the injury was received for the purposes of s 151D, the legislature has provided that with the leave of the court proceedings may be commenced beyond the three year limitation period. This would cater for a situation where it was not possible to be precise as to the date upon which the injury was received such as where the injury is one of gradual onset. 32 As was submitted by the respondent, it seems to me that in terms of s 151, s 15 is not a provision which "otherwise expressly provides" for the purpose of deeming the time of the worker's incapacity as the date upon which the relevant injury is received for the purposes of ss 151D or 151G or 151H. 33 In my opinion, therefore, despite the careful and at times ingenious submissions of Mr Rowe, he cannot overcome the effect of the clear decisions of this Court in Hobbs and, in particular, Larsen-Walsh. The primary judge correctly applied those decisions and, in my view, he was bound to do so. In these circumstances, I would propose that the appeal be dismissed with costs. 34 YOUNG CJ in EQ: I agree. 35 BROWNIE A-JA: I also agree. On some future occasion it may be of some significance that the language used in some provisions of the Act speaks of an injury being received or being received at a particular time whereas ss 15, 16 and 17 provide deeming provisions as to the time when an injury "happened". However, it is not significant for present purposes. 36 TOBIAS JA: The orders of the Court will be as I have proposed. **********

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