Ritson v State of New South Wales

Facts

1. The underlying facts are straightforward. The Plaintiff was a police officer between 21 December 2001 and 10 March 2011. On 10 March 2011 he was medically discharged from the NSWPF. The injury upon which he relies occurred on 22 January 2006 when he was working at Surry Hills. On 23 January 2006 the Plaintiff notified that on the preceding day he had sustained injury when he was assaulted by an offender. The relevant notification form can be found on p 79 of the affidavit of Mr Ronald Galea, which is Exhibit 1 in these proceedings.
2. Contained in Exhibit D, an affidavit of the Plaintiff sworn on 20 May 2022, are two reports of medical practitioners. The first is from Professor William Cumming, an orthopaedic surgeon, who examined the Plaintiff on 22 April 2010 and produced a report bearing date 23 April 2010. The second is a report from Dr Desmond Rea, a plastic and reconstructive surgeon specialising in surgery of the hand. Dr Rea examined the Plaintiff on 20 August 2010 and made a report to the Plaintiff's solicitors on 26 August 2010.
3. Professor Cumming's history commences thus: "On....22 January 2006, Mr Ritson was involved in arresting a person when the person grabbed his right thumb by hand and twisted it violently. It remained sore and swollen and then subsequently he felt that the bone was coming out of place and that his thumb was bending at the joint. He subsequently was referred from his family doctor to Dr Ian Hargreaves, Hand Surgeon. Surgery was performed on 26 August 2009 and he is not sure of the details regarding this. Subsequent to the surgery, his hand was placed in a bandage around the thumb and then he was given hand rehabilitation which continued under the care of Ms Clare Maple-Brown, Hand Therapist, but this finished in March 2010 as he was advised that no further help would be given as the condition was not changing after this period. He most recently attended Dr Ian Hargreaves in February 2010 where he had [an] injection of cortisone. Dr Hargreaves has not made another appointment. Dr Hargreaves informed him that he could not help him any further and that no further treatment is advised in the future and that he should live with the condition."
4. In further history Professor Cumming pointed out that the Plaintiff was still a member of NSWPF, that other than the time off that he had for the surgery he had been working, but in March 2007 he was suspended from duty related to a criminal prosecution matter and at the time that the Plaintiff was examined by Professor Cumming he remained so suspended.
5. A further piece of history is recorded by Dr Rea. Fortunately, the Plaintiff was able to provide to Dr Rea a copy of the operation report, the operation having been performed by Dr Hargreaves at St Luke's Private Hospital on 26 August 2009. Dr Rea noted that the report described a capsulorrhaphy of the metacarpo-phalangeal joint of the right thumb plus an excision of the radial styloid bone. In other places the same bone is referred to as the sesamoid. Plain x-ray of 9 February 2010 showed that the sesamoid had been excised and that there had been a bone anchor placed at the base of the proximal phalanx and the collateral ligament complex of that joint. According to Dr Rea the bone anchor was "well placed". Dr Rea described the operation as an excision of the radial sesamoid and a collateral ligament repair following upon that excision.
6. Professor Cumming thought the Plaintiff was suffering from post-traumatic osteoarthritis of the metacarpal phalangeal joint of the right thumb. He went on to say this: "In the circumstances in which his current surgeon has advised against any further treatment, in my opinion, he would be wise to consult with another hand and wrist surgeon as in my opinion, Technetium scan would be interesting as MRI study would to elucidate this further and is very likely now to confirm the presence of osteoarthritis of the MCP joint of a post-traumatic nature and that arthrodesis of this articulation would be clinically indicated in my opinion based on the symptom complex. Should such an arthrodesis be performed, since he has a small amount of movement of that articulation on a bilateral normal physiological basis, I believe the result would be very satisfactory. Should he obtain the usually expected high quality result from an arthrodesis of his thumb MCP joint, then there would be no limit on his abilities and he would return to all full activities both at work and socially."
7. Dr Rea was of much the same opinion as Professor Cumming. He thought it would be, "not unreasonable to suggest a fusion or arthrodesis of that joint which means the patient would then have a pain free joint which he could rely on." Interestingly, on examination Dr Rea noted this: "I could note the scar of the surgical procedure carried out by Dr Hargreaves which was a broad V shaped scar running in the line of the thumb, extending from the base of the thumb down to 2cms past the metacarpo-phalangeal joint on the radial and flexor side for a total length of 5cms. This scar and the joint site did appear to be quite tender on pressure. I noted he did have quite a lot of tenderness and sensitivity at the scar site and the underlying joint on that side."
8. I understand that the claim under s 60 is in respect of treatment of that surgical scar and its tenderness and sensitivity. However, there is no medical evidence before me on that issue at this time. I assume, therefore, for the moment, that the Plaintiff will be successful in his claim if he be allowed to make it.

Discharge and Deed

1. When the Plaintiff was discharged from the NSWPF he received an award of $587,861.82 under the Crown Employees (Police Officers Death and Disability) Award 2005 in respect of an on-duty partial and permanent disability. That Award, as I understand it, was made in order to seek to compensate police officers who were not contributors to the Police Superannuation Fund established under the Police Regulation (Superannuation) Act 1906 and who had no entitlement to the equivalent of "hurt on duty" benefits that were and are available to members of the police force who joined prior to 1 April 1988.
2. It is clear from the deed about which I am shortly to speak that there were many disputes between the Plaintiff and the NSWPF and other officers and employees of that entity.
3. The deed of release in question is annexure A to the affidavit of Mr Ronald Galea affirmed on 2 February 2022, which is Exhibit 1. The deed itself is lengthy. There are 22 recitals identified with capital letters commencing with "A" and ending with "V". The recitals are not described as such. Instead of a heading entitled "Recitals", there is a heading "Background". Instead of referring to any particular recital, the deed refers to a "Background clause" or "Background clauses". The recitals are these: "A Mr Ritson was employed with the NSWPF from 21 December 2001 util 10 March 2011 when he was medically discharged (Employment). B On medical discharge Mr Ritson received an award of $587,861.82 under the Crown Employees (Police Officers Death and Disability) Award 2005 (D&D Award) in respect of an on-duty partial and permanent disability. C Mr Ritson has made an application to Metlife Insurance and First State Super for a "top up" claim on his payment under the D&D Award on the basis that he has sustained an on-duty injury which has rendered him totally and permanently disabled within the meaning of the D&D Award. D Mr Ritson has commenced multiple sets of proceedings against NSWPF, as set out in Schedule One (Proceedings). E NSWPF has made various admissions in some of the Proceedings but otherwise denies that Mr Ritson is entitled to the relief sought against NSWPF in the Proceedings. F Mr Ritson has made and foreshadowed multiple complaints against NSWPF and its Officers in relation to period both during and after the Employment, including those set out in Schedule Two (Complaints). G Mr Ritson has made numerous requests to NSWPF and its Officers, both during and after the Employment, including those set out in Schedule Three (Requests). H The NSWPF is an employer liable to pay compensation under the Workers Compensation Act 1987 and the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act). I On or about 30 March 2002 Mr Ritson sustained an injury to his head in the course of the Employment. Mr Ritson lodged a workers compensation claim in respect of same (claim number B0212577). That claim has been finalised and closed. J On or about 10 August 2005 Mr Ritson sustained an injury to his left hand in the course of the Employment. Mr Ritson lodged a workers compensation claim in respect of same (claim number 770519000893). That claim has been finalised and closed. K On or about 25 September 2005 Mr Ritson lodged a workers compensation claim in respect of an incident in the course the Employment in which he was exposed to blood (claim number 770519005169). That claim is currently open. L On or about 22 January 2006 Mr Ritson sustained an injury to his right thumb in the course of the Employment. Mr Rtison lodged a workers compensation claim in respect of same (claim number 770519005169). That claim is currently open. M On or about 13 September 2006 Mr Ritson sustained a psychological injury in the course of the Employment. Mr Ritson lodged a workers compensation claim in respect of same (claim number 770519012500). That claim is currently open. N On or about 4 May 2009 Mr Ritson sustained a psychological injury in the course of the Employment. Mr Ritson lodged a workers compensation claim in respect of same (claim number 770519057272). That claim is currently open. O In addition, Mr Ritson alleged he sustained a psychological injury due to the general nature and conditions of the Employment. P Mr Ritson has notified the NSWPF of a proposed claim for work injury damages as set out in the Proposed Statement of Claim annexed as Schedule 6 to this document. Q Mr Ritson's proposed claim for work injury damages against the NSWPF is in respect of the psychological injuries referred to in Background clauses I to O above. R Mr Ritson alleged that the psychological injuries referred in Background clauses I to O above have resulted in at least 15% whole person impairment. S In accordance with section 280A of the Workplace Injury Management Act 1998 Mr Ritson also makes a claim for lump sum compensation in respect of the impairment, such claim having been made before or at the same time as the claim for work injury damages. T The negligence which Mr Ritson alleges as against the NSWPF is set out in Schedule 6 to this document. U The NSWPF has denied the allegations in Schedule 6. V Without admission of liability, the parties have agreed to resolve all of their differences and bring an end to all Claims by fully and finally setting all matters between them and any contemplated or potential Claims by Mr Ritson, in the manner set out in this document."
4. The first clause of the deed concerns interpretation. The word "Claims" has been defined in this fashion: "Claims means the Proceedings, Complaints, Requests, and includes all other actions, complaints, requests, and contemplated or potential actions, complaints and requests, obligations, sums of money, causes of action, accounts, costs, charges, expenses, claims and demands at law or in equity and arising under any industrial instrument or statute, including, without limitation, the Police Act 1990, the Government Information (Public Access) Act 2009, the Health Records and Information Privacy Act 2002, the Privacy and Personal Information Protection Act 1998, other than the Myers Private Prosecution."
5. The deed contains a condition precedent. It is set out in cl 1.4 of the deed and it is in these terms: "1.4 Condition precedent It is a condition precedent to the operation of this document that Mr Ritson: (a) obtain a report or supplementary report from Dr Selwyn Smith or another suitably qualified medical practitioner assessing the appropriate whole person impairment (WPI) at 17% WPI and excluding any reference to any entitlement to WPI as a result of the effects of treatment; and (b) provide notice of a claim for work injury damages setting out the particulars prescribed by Section 282 of the 1998 Act; (c) execute a letter to Employers Mutual Limited and NSW Police Force formally requesting that claim number 770519005169, in respect of the injury on or about 22 January 2006 to his right thumb be finalised and closed; (d) make admissions in respect of the injury on or about 22 January 2006 to his right thumb."
6. Clause 2 bears a heading "Settlement (other than work injury damages and workers compensation)". Clause 2.1 is this: "2.1 Payment Subject to clause 3, NSWPF will pay the sum of $600,000 (Settlement Sum) to Mr Ritson, no more than 10 Business Days after satisfaction of the condition precedent in clause 1.4 (Due Date), in full and final settlement of: (a) the Proceedings; (b) the Complaints; (c) the Requests; (d) the investigation of complaints in any way connected with breaches of Mr Ritson's privacy; (e) the facts and circumstances described in the Background clauses; and (f) any and all Claims and entitlements, other than any claim for compensation or damages arising from exposure to asbestos, arising from Mr Ritson's; (i) Employment; (ii) contract of employment with NSWPF; (iii) on and off duty interactions with NSWPF or any of its Officers; and (iv) discharge from the Employment."
7. Clause 3 bears a heading "Settlement - work injury damages and workers compensation". The clause is this: "3.1 Subject to clause 2, NSWPF agrees to pay: (a) to Mr Ritson an amount of fifty thousand dollars ($50,000) for permanent loss compensation pursuant to Sections 66 and 67 of the Workers Compensation Act 1987 (1987 Act) particularised as follows: (i) Section 66 of the 1987 Act: 17% WPI in the sum of twenty three thousand dollars ($23,000); and (ii) Section 67 of the 1987 Act: twenty seven thousand dollars ($27,000); and (b) to Mr Ritson an amount of five hundred thousand dollars ($500,000) for damages (clear of workers compensation payments made to date and inclusive of costs); (c) to Medicare the sum of $6,673.50 in satisfaction of the Notice of Past Benefits or Notice of Charge dated 12 November 2011 which is annexed as Schedule 7 to this Deed, With such compensation and damages being in full and final satisfaction of the injuries as set out in this document. 3.2 The parties agree that the payment referred to in clause 3.1 does not constitute an admission of liability by NSWPF in respect of any claim or allegation made by Mr Ritson. 3.3 In consideration of the payment referred to in clause 3.1 Mr Ritson releases and will release NSWPF and each of its related bodies corporate, officers, employees, successors, heirs and assigns from all Claims and liabilities of any nature (including any costs) connected with or incidental to: (a) the proceedings and any possible proceedings arising from, related or in any way connected with the matters in Background clauses I to O; and (b) injuries of any kind, including but not limited to, the head, brain, neck, back, pelvis, whole spine, chest, lungs, abdomen, groin, buttocks, hips, sexual organs, both shoulders, both upper and lower limbs in their entirety, functional overlay, anxiety, depression and all other psychiatric injuries and/or symptoms, diminution of taste, sight, smell, the aggravation, acceleration, exacerbation and causation of disease (excluding any claim for compensation or damages in respect of a disease arising from exposure to asbestos) resulting from the Employment. 3.4 Mr Ritson, as a condition of this settlement and in consideration for the sums of money paid by NSWPF in clause 3.1 undertakes to: (a) obtain a supplementary report from Dr Selwyn Smith (or such other suitably qualified psychiatrist) assessing the appropriate whole person impairment (WPI) is 17% WPI and removing all reference to any entitlement to WPI as a result of the effects of treatment; and (b) provide notice of a claim for work injury damages setting out the particulars prescribed by Section 282 of the 1998 Act; (c) execute a letter to Employers Mutual Limited and NSW Police Force formally requesting that claim number 770519005169, in respect of the injury on or about 22 January 2006 to his right thumb be finalised and closed; (d) make admissions in respect of the injury in or about 22 January 2006 to his right thumb. 3.5 Each party shall take all steps, execute all documents and do everything reasonably required by the other party to give effect to the transaction contemplated by this document, including but not limited to those documents annexed to this document as Schedules 8 and 9."
8. Clause 7 is headed "Release and bar to proceedings". It contains these subclauses: "(a) Other than any enforcement by Mr Ritson of the District Court Costs Order or any action to enforce this deed, Mr Ritson, by this document, releases and forever discharges NSWPF and its Officers from all Claims, both at law or in equity and/or arising under any statute which he has or had or may have against NSWPF or its Officers, arising out of or in any way related, either directly or indirectly, to: (i) the Proceedings; (ii) the Complaints; (iii) the Requests; (iv) the investigation of complaints in any way connected with breaches of Mr Ritson's privacy; (v) the facts and circumstances described in the Background clauses; and (vi) any and all Claims and entitlements, other than any claim for compensation or damages arising from exposure to asbestos, arising from Mr Ritson's: (A) Employment; (B) contract of employment with NSWPF; (C) on and off duty interactions with NSWPF or any of its Officers; and (D) discharge from the Employment. (b) If Mr Ritson: (i) commences any Claims against any third party arising out of or in any way related, directly or indirectly, to the matters in clause 7(a)(i) - (vi) above; and (ii) NSWPF and / or any of its Officers incur any expenses or suffer any loss in connection with the Claims in clause 7(b)(i), then Mr Ritson will indemnify NSWPF and / or any of its Officers in respect of any such expense or loss, provided that such expense or loss is reasonably incurred or suffered. (c) This document may be pleaded as a bar to any Claims or actions commenced, or to be commenced, by Mr Ritson against NSWPF or any of its Officers concerning or arising out of or in any way related, directly or indirectly, to the matters in clause 7(a)(i) - (vi) above. (d) Mr Ritson indemnifies the NSWPF and each of its Officers against: (i) all Claims which Mr Ritson now has or could, would or might but for this release have or have had against the NSWPF, or any of its Officers, related to the matters addressed in this deed; and (ii) all Claims in any way related to the enforcement of this deed by NSWPF."
9. Clause 8.1 bears a heading "Acknowledgments and warranty". It contains these provisions: "8.1 Mr Ritson acknowledges that the information contained within the Background clauses to this deed is true and correct, and that NSWPF is relying upon this acknowledgement in entering into this deed; and 8.2 The parties acknowledge that: (a) they enter into this document fully and voluntarily upon their own investigations; and (b) that the terms will apply even if a party or its advisers, agents or lawyers discovers facts different from or in addition to the facts that they now know or believe to be true with respect to the subject matter of this document. 8.3 Mr Ritson warrants that: (a) prior to the Due Date he will execute such documents as are required by NSWPF to validly direct First State Super to pay from the amount of any payment Mr Ritson is entitled to in respect of a claim for total and permanent disablement under the D&D Award (or any successor) the amount described in Background clause B, to NSWPF; and (b) he has no outstanding or current complaints that he has lodged with Ombudsman New South Wales notifies the NSWPF of any such complaint after the date of this document, then Mr Ritson authorises NSWPF to send the signed letter to the Ombudsman which is annexed as Schedule 10, which letter is held in escrow by the NSWPF until then."
10. Clause 13 provides that the deed is governed by the law in force in New South Wales. Clause 14 requires the parties to submit to the jurisdiction of the Courts of this State.
11. The deed was executed as such by the Plaintiff on 21 November 2011. His signature has been witnessed by Simon Mitchell, whom I understand to be a solicitor.
12. There are a number of schedules to the deed. Schedule 5 contains two notices of discontinuance of proceedings. The first is the discontinuance of proceedings in the Administrative Law List of the Common Law Division in matter number 2011/0078826. Proceedings were between the Plaintiff and the Commissioner of Police. The second discontinuance is for proceedings solely in the Common Law Division between the Plaintiff and the State of New South Wales. Neither party has put before me the Statement of Claim or other initiating process in either of those proceedings. They appear not to be currently relevant. Further in Sch 5 to the deed are a number of discontinuances of various sets of proceedings in the NSW Administrative Decisions Tribunal and the discontinuance of one set of proceedings in the Australian Human Rights Commission.
13. Schedule 6 is a proposed Statement of Claim naming the Plaintiff as the Plaintiff and the current Defendant as the Defendant. The "TYPE OF CLAIM" bears this endorsement: "Torts - Negligence - Personal Injury". The relief claimed is, in essence, damages. Clause 2 of the proposed pleading is this: "At all material times the Plaintiff was a member of the New South Wales Police Force ('the Police Force') having commenced his employment in 2001." Clause 5 recites the Plaintiff's medical discharge in March 2011. Proposed cl 6 is this: "In the course of the Plaintiff's service to the Police Force from 2001 to 2011 the plaintiff was exposed to harassment, victimisation, discrimination and inappropriate treatment."
14. Clauses 7 to 10 appear under the heading "Particulars" and all refer to the Plaintiff suffering psychological/psychiatric injuries or a psychological/psychiatric injury.
15. There then appears a heading "Duty of Care". There follows par 11 which contains 22 subclauses. The chapeau and subclause (b) are these: "At all material times due to the Plaintiff's employment/service with the Police Force, the Defendant owed the Plaintiff a duty of care/non delegable duty of care to provide a safe system of work which included: ... b. Taking all reasonable precautions for the safety of the Plaintiff while he was engaged in his work;..."
16. The breach of the duty of care is recorded in proposed cl 12 and it contains perhaps two relevant subclauses (a) and (b): "a. Failing to provide a safe work environment; b. Failing to develop and implement systems of work which ensured that the Plaintiff was not exposed to harassment, victimisation, discrimination and/or inappropriate treatment;".
17. Clause 13 of the proposed pleading contains this: "The Defendant was aware or ought to have been aware that a breach of the duty of care as pleaded above would have led to the Plaintiff suffering psychological/psychiatric injury."
18. I am persuaded that the proposed statement of claim was solely in respect of the psychiatric illness claimed by the Plaintiff due to "harassment, victimisation, discrimination and inappropriate treatment". The words, "inappropriate treatment", can mean many things but there is no evidence before me that the Plaintiff suffered in any way any psychiatric illness because of the injury to his right thumb and the appropriate treatment for it.
19. There is no real dispute that the sums referred to in cl 2 and 3 of the deed were paid. The sum referred to in cl 2 of the deed is irrelevant for current purposes, but when I inquired of the Plaintiff whether that had been paid he responded to me rather evasively. In any event, he agreed that it was not relevant to the current issue. The issue here is whether the sums referred to in cl 3.1(a) were paid. The moneys referred to in cl 3.1(a)(i) represent the whole person impairment referred to in the condition precedent and reflect whole person impairment for a psychiatric/psychological injury. It is accepted that the Plaintiff physically received the sum of $498,789.20 which represented the $500,000 referred to in cl 3.1(a)(ii), "less wages paid in advance". The Plaintiff in his evidence tells me that the wages that were paid in advance were, "in respect of the psychiatric injury", and not in respect of the thumb injury, a proposition I readily accept, but the significance of that appears to be largely irrelevant.

Statutory interpretation

1. The question here is one of statutory interpretation. Section 149(1) of the 1987 Act is this: "(1) In this Part - damages includes - (a) any form of monetary compensation, and (b) without limiting paragraph (a), any amount paid under a compromise or settlement of a claim for damages (whether or not legal proceedings have been instituted), but does not include - (c) compensation under this Act, or (d) additional or alternative compensation to which Division 8 of Part 3 applies, or (e) an award of compensation or direction for compensation under Part 2 or Part 4 of the Victims Compensation Act 1996, or (f) a sum required or authorised to be paid under a State industrial instrument, or (g) any sum payable under a superannuation scheme or any life or other insurance policy, or (h) any amount paid in respect of costs incurred in connection with legal proceedings, or (i) damages of a class which is excluded by the regulations from this definition." Section 151A(1) of the same Act says this: "If a person recovers damages in respect of an injury from the employer liable to pay compensation under this Act then (except to the extent that subsection (2), (3), (4) or (5) covers the case) - (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."
2. The sum referred to in cl 3.1(b) of the deed is a form of monetary compensation. There can be no dispute about that. Using the terminology, in the chapeau to s 151A(1), one can see this: "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."
3. The real question is, was the monetary compensation in respect, inter alia, of the injury to the Plaintiff's right thumb/right hand? In Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52, Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ said at [40]: "This Court, in Pacific Carriers Ltd v BNP Paribas, has recently reaffirmed the principle of objectivity by which the rights and liabilities of the parties to a contract are determined. It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction." That dictum was quoted by Rares J in Friend v Comcare [2021] FCA 837 at [100]. His Honour went on to say this in the following paragraph: "The surrounding circumstances known to both parties, however, are not to be confused with the subjective evaluation that each party may make about his, her or its knowledge of the other's claim or negotiating position."

Consideration

1. Furthermore, it is only necessary to have recourse to the surrounding circumstances if there be any ambiguity in the contractual document itself. It is clear from Background clause L that the parties were aware of and took into account the injury to the Plaintiff's right thumb which occurred on 22 January 2006. It is clear that the word "claims" was defined to include any claim arising, inter alia, under any statute which of course includes the 1987 Act.
2. The last phrase in cl 3.1 must be given weight. The compensation and damages referred to earlier in cl 3.1 were "in full and final satisfaction of the injuries" otherwise set out in the deed that include the injury to the right thumb on 22 January 2006. Clause 3.3 is the formal release under the deed of liability. However, that formal release does not end the Plaintiff's entitlement to claim compensation under the 1987 Act in respect of the injury on 22 January 2006. What it is alleged does end the Plaintiff's right to make such a claim is the payment of the money referred to in cl 3.1 "being in full and final satisfaction of the injuries set out in this document."
3. Clause 3.4 has a meaning which each party relies upon, in particular subclauses (c) and (d). The Defendant relies upon the subclauses as indicating that the parties intended that the injury to the right thumb on 22 January 2006 was being taken into account in the settlement that was reached and therefore in the moneys that were being paid under cl 3.1(b). The Plaintiff, however, points out that these are quite inconsistent with that fact and consistent with his assertion that what they indicate is that there was no common law liability in the Defendant for the injury of 22 January 2006 and therefore he was not entitled to damages in respect of it and therefore this was merely an attempt to contract out of the Act, a practice contrary to s 234 of the 1998 Act and one of the basic provisions in any workers compensation scheme. A request to "close a file" has absolutely no legal significance. It may have administrative significance to a claims officer or a claims manager or an underwriter or an auditor or an actuary but is of no significance whatever to any lawyer.
4. As is clear from what has happened in the present matter, an old injury can cause a degenerative condition. The degenerative condition can become worse with time and eventually lead to the need for further treatment. I would point out that any damage to an intra-articular surface often leads to the development of osteoarthritis. The damage to the bone at the base of the Plaintiff's right thumb would have damaged the intra-articular surfaces relating to the bone and therefore predisposed the Plaintiff to develop osteoarthritis in the base of his thumb, which, clearly, on the opinions of Professor Cumming and Dr Rea has occurred and may yet lead to the Plaintiff's being required to undergo arthrodesis and/or fusion of the joint. That is, old injuries, even though the "file" be closed, can often lead to the need for the file to be "reopened." Anyone with a modicum of knowledge of workers compensation law and practice would know that.
5. The practice of making admissions in respect of an injury arose in the Compensation Court of New South Wales when the ability to obtain a redemption was abolished and then the ability to obtain a commutation was abolished, in order to "settle" claims and to try to bring some finality to litigation. The practice arose of making lump sum payments under ss 66 and 67 with workers making admissions of the type referred to in cl 3.4(d). The admissions which the Plaintiff made are contained in Sch 9 of the deed and are these: "1 The Employee admits that in respect of the injury to his right thumb (claim number 770519005169) he: 1.1 has been paid all wages or entitlements. 1.2 Has been paid all treatment expenses entitlements. 1.3 has suffered no further loss or any impairment of any part of the body as a result of that injury, within the meaning of the Workers Compensation Act 1987 employer and/or the Workplace Injury Management and Workers Compensation Act 1998, arising out of or during the course of his employment with the employer. 1.4 he acknowledges that he has been fully compensated under the provisions of the Workers Compensation Act 1987 employer and/or the Workplace Injury Management and Workers Compensation Act 1998 for the injury and has no further entitlement to compensation and/or work injury damages as a result of his employment with the employer. 2 The Employee agrees to execute a Common Law Deed of Release if required to do so. 3 The Employee acknowledges that the employer and its workers compensation insurer consents to the Deed of Release herein by way of compromise and in reliance upon the admissions the Employee has made. 4 These admissions have been signed by the Employee, Brendan Paul Ritson, and expressly adopted herein as Admissions between the parties."
6. The admissions are very much the sort of admissions which were employed by litigants in the Compensation Court after the abolition of redemptions and commutations. However, no admission could bar any further proceedings because there might yet be further hospital, medical or like treatment. There may yet be a deterioration in the condition of a worker such that the permanent losses or impairments that he or she had suffered increased or there might be, because of some recurrence of injury a further entitlement to weekly payments. Admissions were generally seen as barring the past as at the time the admissions were made but not barring the future.
7. Whether the Plaintiff knew that or not I do not know. However, the fact remains that the inclusion of cl 3.4(c) and 3.4(d) does mean that the parties were taking into account in the accord that they reached the injury to the Plaintiff's right thumb and/or hand that occurred on 22 January 2006.
8. Clause 7 is important for the matter contained in cl 7(a)(v) because it released the Defendant and barred proceedings in respect of any injury contained in the recitals which included the injury of 22 January 2006.
9. The leading authority on this issue is the judgment of Handley AJA in Adams v Fletcher International Exports Pty Ltd [2008] NSWCA 238. That judgment was the subject of agreement of Allsop P, as his Honour then was, and Giles JA. At [10] his Honour noted that the deed relied upon in that case contained a recital that the worker had worked for the employer between 15 December 1988 and 20 June 2003, and that the worker had two sets of proceedings in the Australian Industrial Relations Commission. His Honour then pointed out that a further recital was this: "(C) In addition the employee has alleged that he has sustained work injuries as a result of the nature and conditions of his employment with the employer throughout the entire period of that employment including but not limited to an injury to his left hand and wrist."
10. At [11] his Honour set out the operative provisions of the deed which required the payment by the employer to the employee of $2,500 within 28 days after receipt by the employer of the deed of release signed by the employee. Clause 3 as cited by his Honour was this: "In consideration of the payment referred to in clause one (1) the employee releases and will release the employer … from all claims and liabilities of any nature (including any costs) connected with or incidental to:- (a) the proceedings and any possible proceeding; (b) the circumstances or allegations referred to in the proceedings and any possible proceedings or upon which the proceedings and any possible proceedings were or could be based; (c) the employment of the employee including but not limited to the circumstances of the termination of that employment and any matter, at, or thing occurring during the course of that employment; (d) any entitlements to damages of any kind including but not limited to any entitlement to work injury damages … consequent upon the injuries referred to in the Recitals or otherwise."
11. At [17] his Honour pointed out that the deed by itself could not have affected the worker's rights to compensation because of s 234 of the 1998 Act. However, his Honour then said this: "The worker's difficulties flow not from the deed as such, but from his acceptance of the payment of $2,500." His Honour then quoted s 151A(1)(a) of the 1987 Act and in [19] pointed out that the word "recovers" had a fixed meaning in law. It involved the actual receipt of money. Commencing at [21] his Honour said this: "21 It is clear therefore that the worker recovered the sum of $2500 and the only question under s 151A(1)(a) is whether this amount was 'damages in respect of an injury'. Damages for this purpose is defined in s 149 of the 1987 Act as follows: 'Damages includes: (a) any form of monetary compensation, and (b) without limiting (a), any amount paid under a compromise or settlement of a claim for damages (whether or not legal proceedings have been instituted), but does not include: (c) compensation under this Act …'. 22 It cannot be denied that the $2500 was monetary compensation within para (a) of this definition. It is not clear that the worker had made "a claim for damages" which would bring the deed within para (b) although the recitals suggest that this may have happened. It is not necessary to decide this question because para (b) does not limit para (a). 23 Mr King SC who appeared for the worker with Mr Dodd submitted that the worker had no claim or possible claim for damages for a number of reasons but since the case is clearly within para (a) it is not necessary to deal with these submissions. 24 The remaining question is whether the payment of $2500 damages, as defined, was "in respect of an injury" so that s 151A(1)(a) applied and the worker ceased to be entitled to "any further compensation under this Act in respect of the injury concerned." The character of the payment is governed by the deed and the letter of 17 January 2005 which accompanied the cheque. 25 Recital C refers to allegations by the worker that he had sustained work injuries as a result of the nature and conditions of his employment "including but not limited to an injury to his left hand and wrist." Recital E refers to possible claims for damages, clause 1 contains the employer's agreement to pay $2500 "in respect of general and other damages" and clause 3 contains the worker's agreement, in consideration of that payment, to release "any entitlement to work injury damages". 26 The deed singled out, without limitation, the injury to the worker's left hand and wrist. The application to resolve the dispute lodged on 19 January 2005 also identified this as the most significant injury, and it appears from Recital C that the earlier application which was discontinued must have done the same. Moreover the award of Arbitrator Duncombe, which was revoked on appeal, was based on this injury alone. The claims for other injuries were dismissed. 27 The amount of $2500 was also paid in respect of other claims, but this cannot matter. The deed and the letter, construed on their face, or in the light of the surrounding circumstances, establish that the payment was made "in respect of" the injury to the worker's left hand and wrist. Accordingly he ceased to be entitled to compensation "in respect of the injury concerned", that is the injury to his left hand and wrist. 28 The decision of Acting Deputy President O'Grady to apply s 151A(1)(a) and set aside the award of Arbitrator Duncombe was therefore correct. It is a most unfortunate result for this worker who gave away rights of substantial value for an immediate payment of a mere $2500. However the 1987 Act in its present form is intractable and the Court has no option but to give effect to the clear language of Parliament. The following orders should be made: (1) Appeal dismissed.

(2) Appellant to pay the respondent's costs."

1. In the current matter Mr Ritson has argued that because the lump sum that was paid to him was "inclusive of costs" the lump sum could not be apportioned to any source and therefore that because it included costs it should be seen as being in respect of costs only and not, for example, in respect of the injury to his thumb. Of course that is quite inconsistent with what occurred in Adams's case. It is clear from what his Honour quoted that the offer was inclusive of costs and it not only included the appellant's entitlement to workers compensation and industrial accident damages but also the worker's entitlement to damages for unfair dismissal.
2. The judgment in Adams needs to be contrasted with an earlier judgment of the Court of Appeal in New South Wales Fire Brigades v Newman [2008] NSWCA 82. Reasons were given by Basten JA, by Bell JA and by Handley AJA who agreed with both Basten and Bell JJA. The most succinct judgment is that of Basten JA. Commencing at [2] his Honour said this: "The uncontested facts were that Ms Newman had agreed to settle an earlier damages claim on the basis of payment by the appellant's insurer of an amount which was intended to cover her solicitor's costs in relation to the claim. The Deputy President [the late W J Roche Esq] made a finding to that effect: see Newman v NSW Fire Brigades [2007] NSWWCCPD 142 at [36] … "3. The definition of 'damages' in s 149 of the 1987 Act expressly excludes any amount paid 'in respect of costs incurred in connection with legal proceedings' (s 149(1)(h)). I would accept, for the reasons given by Bell JA, that the payment of $1,500 was in respect of costs and those costs were costs incurred in connection with proposed legal proceedings and were therefore within s 149(1)(h), unless the agreement achieved a different result."
3. At [6] his Honour said this: "The first problem faced by the appellant in relying on the agreement is that nowhere in the agreement is the payment characterised as being on account of 'damages'. It may no doubt be inferred that the 'claim' under the Motor Accidents Compensation Act 1999 (NSW) to which the agreement referred was a claim for damages; the agreement stated that an amount was offered 'in full and final settlement of all claims which you may have under the Act'. Further, cl 2 stated that the insurer was entitled to deduct from the payment amounts which could be deducted from a payment of damages pursuant to s 151Z of the 1987 Act. Nevertheless, no deductions were made and no complaint is made in that regard. The fact found by the Deputy President was that the payment was neither intended by the insurer to be a payment on account of damages, nor understood by Ms Newman to be such, when she authorised payment to her solicitors of the full amount. The agreement does not establish a different common intention. Accordingly, the appellant fails at the first hurdle."
4. It was common ground between the worker and the authorities administering the Motor Accidents Compensation Act 1999 that the payment was only in respect of the costs, she having elected to proceed with her workers compensation claim rather than with her claim for motor accident damages.
5. Another decision that needs to be considered is Gardiner v Laing O'Rourke Australia Construction Pty Ltd [2020] NSWCA 151; (2020) 102 NSWLR 599. The first judgment was given by Basten JA. At [57] his Honour cited three of the recitals in the relevant deed. Recital P was this: "The parties agreed, without any admissions as to liability, to settle all issues between them howsoever arising out of the [specified concerns], the Complaints, the Investigation, the ADB Complaints, the Conciliation Conference and/or in any way connected to the Employment or the Termination of Employment by LORAC excluding any claim by Dr Gardiner pursuant to the provisions of any applicable Workers' Compensation legislation, in accordance with the terms of this Deed."
6. At [61] his Honour said this: "Fourthly, to the extent that recital P could be read as recording an agreement 'to settle all issues between [the parties] however arising out of [the identified matters] … or in any way connected to the employment or termination of the employment', and thus covering any personal injury arising out of or in the course of the employment, that reading would give an expression of unlimited generality a life of its own, unconstrained by the context in which the words appeared. Given the express exclusion contained in the same recital, it was clearly not the parties' intention to release the respondent from all liability, or indeed any liability, for claims pursuant to workers' compensation legislation."
7. A separate judgment was given by Leeming JA. His Honour said this: "82 Accordingly, the legal character of the $34,000 which was paid to the appellant and his solicitors is not sufficiently identified merely by observing that they were amounts payable under a settlement. The effect of the definition of 'damages', which accords with the general principle governing the character of payments made pursuant to a settlement, is to require an analysis of what was being compromised. 83 One therefore asks whether the claims compromised by the deed were 'in respect of an injury'. That requires an evaluation of the legal relationship between the payment of money and the claim that is made in respect of any injury. These sorts of questions can be most vexed, as Windeyer J's luminous judgment in The National Insurance Company of New Zealand Ltd v Espagne (1961) 105 CLR 569; [1961] HCA 15 illustrates. The law has not infrequently asked whether a government pension, or a donation, or a payment from an insurance company, any of which is only payable by reason of an injury suffered by a plaintiff, is to be taken into account by way of reduction of the damages for personal injury payable by a defendant whose negligence caused the injury. 84 The answer to the question does not turn on the meaning of "in respect of" considered in isolation. Although those words encompass a wide range of relations, the meaning of such a 'relational term' (to use the description given by French CJ in The Queen v Khazaal (2012) 246 CLR 601; [2012] HCA 26 at [31]) is inevitably inexact and necessarily requires regard to context in any particular case, as Meagher JA recently observed, by reference to authority, in Inghams Enterprises Pty Ltd v Hannigan [2020] NSWCA 82 at [135]. 85 But the present case is, to my mind, straightforward. The parties must be taken to have agreed that the payments were not in respect of the injury for which there was a pending claim for workers compensation, which was expressly preserved in no fewer than five of the substantive clauses (cll 3, 4, 6.3(f), 6.4 and 7.1) as well as recital P. 86 True it is that there are limits upon the extent to which parties may agree as to the characterisation of payments between them. For example, an employer who has wrongfully withheld wages from an employee cannot in settling that dispute agree with the employee that a payment is of a capital nature and by that device defeat the operation of income taxation legislation. But there is no suggestion of any such artifice here. There is no suggestion that the appellant's claims aside from the workers compensation claim were anything other than genuine. All indications point to the conclusion that the parties are to be taken to have compromised the long-standing complaints based on alleged discrimination and misuse of intellectual property, but to have preserved the claims arising under workers compensation legislation. There is nothing wrong with parties with multiple disputes agreeing to settle some but not all of them. And indeed, in the United Kingdom it has 'long been a common practice to exempt from the scope of a 'full and final settlement' between an employer and employee any claim that the employee has or may have in regard to personal injury': D Foskett, Foskett on Compromise (9th ed, Sweet & Maxwell, 2020), p 427. 87 When one looks at the recitals in order to identify the underlying dispute which was compromised, and the substantive provisions in the deed which constitute the consideration for the payment, all point in the same direction. Each of recital P and clauses 3, 4, 6.3(f), 6.4 and 7.1 expressly excludes proceedings under 'workers compensation legislation'. It follows that the payments made pursuant to the deed were not in respect of the injury that was the subject of the pending claim for compensation under the Workers Compensation Act. 88 Although not raised before the Workers Compensation Commission, s 280B of the Workplace Injury Act confirms that conclusion. That section is necessarily to be read with s 151A, not merely by reason of s 2A(2) of the Workers Compensation Act, but also because of the note in s 280B. At the time the deed was entered into, the employer had received Dr Hong's report which was, in due course, relied on in support of the appellant's claim for lump sum compensation. Reading s 280B harmoniously with s 151A, there is no reason to impute to the parties an intent that the payment be one which would contravene that section."
8. A separate decision was given by Emmett AJA who reached the same conclusion as had his brethren.
9. The final decision to which I should refer is one that has been referred to by Mr Ritson, namely Friend v Comcare [2021] FCA 837, as I have earlier pointed out, a decision of Rares J. Again, it is clear from [109] of his Honour's reasons that the relevant provision in the deed there in question, cl 3.4, provided that the release and indemnity given by the Plaintiff did "not apply to any claim or liability in respect of statutory benefits payable under the applicable workers' compensation legislation."
10. Here, the deed must be read in the contrary sense because it does purport to include liability for the Plaintiff's thumb injury, the event that occurred on 22 January 2006.
11. I have no hesitation in finding and pointing out that the vast majority of the dispute between the Plaintiff and his former employer concerned his allegations of psychiatric/psychological injury or illness and the allegations made by him of harassment, victimisation, discrimination and inappropriate treatment.
12. I accept that the Plaintiff's thumb injury did not at any time entitle him to claim work injury damages because the extent of the impairment agreed between him and his employer was only 3% WPI: see annexure D to the affidavit of Mr Galea affirmed on 2 February 2022 which is exhibit 1. The document in question is a permanent impairment claim made on the Plaintiff's behalf by Taylor & Scott and annexure E to the same affidavit is a complying agreement under s 66A of the 1987 Act pointing out that the Plaintiff was entitled to $3,750 in respect of 3% whole person impairment as a result of the injury to his thumb on 22 January 2006.
13. I accept that at the time the deed was entered into any claim for work injury damages the Plaintiff could have had against the NSWPF in respect of this injury was theoretically statute barred. Any such action is supposed to be commenced within three years of injury but can only be commenced if the employer agrees that the extent of their whole person impairment resulting from the injury in question is more than 15%. No such agreement had been reached.
14. However, the Court is acutely aware that, often, the limitation period is extended, that the whole person impairment only increases with the passage of time, where, as here, there is a degenerative condition set in process by a work injury, and the Court is acutely aware that some clever lawyers can often agitate a common law action on novel grounds which could include trying to establish a liability on the part of the State of New South Wales for an injury done to the Plaintiff by an offender whom he was seeking to arrest including allegations of inadequate training, inadequate assistance and inadequate physical protection which might include inadequate assistance. The pleader might also rely upon an alleged foreknowledge by NSWPF as a whole of the offender in question which knowledge was not had by the injured police officer, NSWPF knowing of a violent history of the offender but the policeman in question not knowing of such violent background. Again, common law actions can spring up long past what might be thought to be the limitation period.
15. A number of propositions have been put to me by Mr Ritson and I will seek to answer them quickly but I point out that his written submissions have all been marked for identification and will be left with the papers and everything that has been said in this Court has been recorded and will be available on transcript if there is any prospect of an appeal.
16. The fact that the insurer of the Defendant attributed payments to one claim rather than another is irrelevant. If all the payments were allocated to a psychiatric illness allegation and not to the deed that can have no bearing on the proper interpretation of the deed because it was done after the deed had been executed. Furthermore, an administrative decision made by an insurer has little legal significance as I have earlier said in another context.
17. The Plaintiff would have greater cause to complain if, for example, half of the sum of $500,000 had been attributed to his thumb injury in the pious expectation by the insurer that it would recover a greater sum from the Insurers' Guarantee Fund because it was an old injury rather than a new one, if the Insurers' Guarantee Fund still exist. Administrative decisions of that nature have no legal significance except in certain limited circumstances.
18. The fact that he believed that the settlement was in respect of his psychiatric illness and allegations of victimisation, harassment and the like is irrelevant. What is important is the objective reading of the terms of the deed. The Plaintiff referred to his executing the letter requesting the closure of his file and his making the admissions only as a matter of "grace and favour" on his part. However, that is not the point. His subjective intention is not the point. The objective intention of the parties must be garnered from the terms of the deed itself and I have sought to do so and objectively the deed included the thumb injury of 22 January 2006.

Disposal

1. HIS HONOUR: Do you need any further reasons, Mr Dixon? DIXON: No, your Honour.
2. I have inquired of learned counsel for the Defendant whether any further reasons are required. I am told by him that none are so required. The appropriate order for relief appears to be that there be an award for the Defendant because this is workers compensation. HIS HONOUR: Anyone want to be heard on that issue? DIXON: No, your Honour. We sought that the proceedings be dismissed but if that's the consequence of what your Honour-- HIS HONOUR: The award for the Defendant will create the estoppel, the dismissal doesn't DIXON: Thank you, your Honour. The Defendant seeks its costs including of the reserved matter. HIS HONOUR: Well, that's another question. DIXON: Yes. HIS HONOUR: Mr Ritson, I'm having a debate with the barrister who is present in court, about the formal orders. I take it that you're not fussed about that, about how the order is recorded. PLAINTIFF: No, your Honour. HIS HONOUR: For those reasons I make an award for the Defendant on the Plaintiff's claim.
3. You seek costs. This is a claim under the Workers Compensation Act 1987. You have to prove on the balance of probabilities that the application was frivolous, vexatious, without proper justification or fraudulent. What are you relying upon?
4. The costs application is stood over to Monday 30 May 2022 at 9.45am. The Court will adjourn. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 August 2022