Section 151A(3) WCA: Was an election made?
62 I have earlier quoted the applicable section 151A and in particular subclause (3)(b). A brief exegesis may be helpful.
63 Section 151A(3)(a) deals with an election in the opposite direction. It deals with the situation where proceedings are commenced in a court to recover common law damages, or by accepting payment of those damages. It will be apparent that when the election for common law damages is so taken to be made, the relevant provisions of s151A(3)(a) are not a simple reciprocal of the provisions deeming election to be made for statutory compensation. Thus election in respect of common law damages is taken to have occurred merely by commencing proceedings in a court to recover those damages. Whereas, in the version of s151A(3)(b) following the 1998 amendment and before the 2001 amendments, the test is not satisfied until the Compensation Court "[makes] an award in respect of that permanent loss compensation".
64 The mere commencement of proceedings in the Compensation Court thus did not suffice, until the later 2001 amendments.
65 Further significance attaches to the use of the words "in respect of" before "the injury" in s151A(2)(a) and before the words "that permanent loss compensation" in s151A(3)(b). The combination of the two provisions is that s151A(2) precludes an entitlement to "permanent loss compensation in respect of the injury" and requires an election between it and common law damages. Then s151A(3)(b) takes that election to have been made, relevantly, "by the Compensation Court making an award in respect of that permanent loss compensation".
66 The significance of the words "in respect of" immediately before "the permanent loss compensation" is that these words, certainly in the workers' compensation context, undoubtedly have a wide meaning; the Workers' Compensation Board of Queensland v Technical Products Proprietary Limited (1988) 165 CLR 642 at 653. That case, as well as the later case of Technical Products Pty Limited v State Government Insurance Office (Queensland) [1988] 167 CLR 45, recognises that the meaning of the words "in respect of" "commonly reflect the context in which they appear" per Brennan, Deane and Gaudron JJ at 47. In that case what was under consideration was the nexus between legal liability and a motor vehicle under s31 of the Motor Vehicles Insurance Act 1936 (Qld), calling for "some discernable and rational link between the basis of legal liability and the particular motor vehicle".
67 In looking here to the nexus between an award and the permanent loss compensation allowed, the question is whether each item of claim must be looked at separately or whether compensation can be properly considered to be in respect of all the items claimed even though the permanent loss compensation was for one item only, namely, the partial loss of use of a thumb.
68 Here there is an important element of context, namely, the statutory context constituted by the then version of s66 WCA. Section 66(1) provides:
"A worker who has suffered the loss of a thing mentioned in the Table to this Division as the result of an injury is entitled to receive from the worker's employer, by way of compensation for the loss, in addition to any other compensation under this Act, the amount equal to the percentage of $100,000 set out opposite to that loss in that Table."
69 Section 66(2) places a cap of $121,000 upon a worker who has suffered more than one of the losses mentioned in the Table.
70 Significantly, the Table to the Division lists a number of distinct injuries.
71 This Table, repealed by the Workers' Compensation Legislation Amendment Act 2001 with effect from 1 January 2002 appeared in s73 WCA. The Table lists under "Nature of Injury" specific injuries such as "speech loss" with a percentage of the maximum amount payable in the right-hand column.
72 At first sight, this would indicate that the reference to "permanent loss compensation in respect of the injury" in s151A(2)(a) and the corresponding words in s151A(3)(b) in relation to an award "in respect of that permanent loss compensation" would suggest that "injury" was to be read distributively in terms of each item of injury rather than refer to the totality of the injurious consequences from the workplace accident.
73 However, that interpretation involves both a degree of absurdity and some dissonance with s151A(5). The absurdity is that it would mean, as pointed out by Maguire DCJ, that a plaintiff who suffered harm in a workplace accident would be entitled to bring a series of actions for common law damages nominating a different consequence of his accident in serial fashion. That would thereby allow a series of different elections for each site of injury, with the possible exception of those injuries that are the consequence of other injuries resulting directly from the workplace accident. It is difficult to discern any rational legislative purpose in such complexity. This is especially when the legislation is clearly directed to a simple legislative scheme requiring the worker to choose which compensatory regime he or she wishes to pursue, with an election being deemed to have been made by reference to the course chosen.
74 Moreover, when it came to the deemed election in s151A(3)(a), the statutory provision clearly does not contemplate such multiple proceedings in split fashion when it comes to proceedings to recover "those damages", being the common law damages in respect of the injury.
75 Moreover, s151A(5) provides for what happens if, after the election is made, "the injury causes a further material deterioration in the person's medical condition that, had it existed at the time of the election, would have entitled the person to additional permanent loss compensation".
76 In that context, clearly enough one looks at the person's medical condition as a whole with material deterioration being in respect of all items of injury, without distinction between injuries that are simply the result of the original workplace accident or injuries that are brought about by other injuries that were the result of that workplace accident such as the ripple effect of an injury to the spine. Had s66(1) WCA the effect of requiring an unbundling (as it were) of each individual item of injury for the purposes of election, one would expect a similar unbundling in the context of "further material deterioration"; yet that is absent.
77 This is a convenient point to consider Corcoran v Tyre Marketers Australia. That was a material deterioration case. As I have earlier explained, it involved a settlement in the Compensation Court of $45,000 in a claim referring to injury to the worker's back, legs and arm. Undoubtedly, the injuries did have effect on one another. It was possible to relate the neck pain to the injuries claimed, in particular one may assume the back. Maguire DCJ relied on what Mason P and Grove J said at [94], which I have recorded in [37] above.
78 Thus as the claimant's contend, this was a case where factually one workplace injury caused another, though ultimately traceable back to the workplace accident itself. That being the factual position, the principle as stated in Corcoran made no such distinction. It would include under the "the totality of disability" both kinds of injury, whether self-standing or the result of other injuries. The unbundling that s66(1) of the old WCA mandates is simply a scaling provision for quantification purposes. Thus the percentage of the maximum amount payable specified for each item is the sum in proportion to which the amount recoverable is to be scaled. For example, in the case of claims for loss of power of speech, the proportion is scaled against 60% of the maximum amount payable which maximum amount is payable only in "a most extreme case". Ultimately the permanent loss compensation is the product of the application of that scale bringing into account each item claimed. This if anything reinforces the conclusion that when "injury" as referred to in s151A(2) incorporates the definition of "injury" in s4, namely, "personal injury arising out of or in the course of employment", it is used in a holistic sense; that is to say, encompassing all the items claimed so as to embrace "the totality of the physical and mental consequences flowing from the occurrence" which enlivened the relevant claim.