Rizza v Fluor Daniel GTI

Court of Appeal (Vic)|1998-12-04|Before: WINNEKE, P., BROOKING and CHERNOV, JJ.A.

PERSONAL INJURY - Action by injured worker against employer - Pecuniary damages - Serious injury occurring before 1 December 1992 - Proceeding commenced after 30 June 1994 - Whether s.135B of the Accident Compensation Act 1985 (as amended) precludes recovery of damages.

(a) Does s.135B of the Act have the effect of precluding the plaintiffs from recovering damages merely because the proceedings in which they are claimed, were not commenced before 30 June 1994?

(b) Did the incapacity of the plaintiffs arising from the injuries sustained by them, become known on or after 1 December 1992 within the meaning of s.135A(2)(b) of the Act?

Before analysing the legislation, I shall summarise the relevant facts as they pertain to the two appeals.

The appellant Corrado Rizza (Mr. Rizza) was at all relevant times employed by the respondent which was the defendant below. On 11 September 1992, he suffered a back injury when he was manually moving a tarpaulin in the course of his employment. He was then a qualified (geological) engineer and was almost 27 years of age. Despite suffering this injury, Mr. Rizza continued to work until 13 September 1992, when he attended the emergency department of the Valley Private Hospital, because of increasing back pain. A provisional diagnosis of facet joint syndrome was made and Mr. Rizza was advised to undertake physiotherapy treatment. It seems that Mr. Rizza had suffered a back injury approximately 12 months earlier and that this problem became worse when he pulled on the tarpaulin as mentioned earlier. During the remainder of 1992, Mr. Rizza frequently experienced back pains in relation to which he received medical attention, including pain killing medication. There were, however, periods when he was not inhibited by the injury, particularly when physiotherapy treatment was effective. In about mid-November 1992, he underwent a CT scan of the lumbar spine which demonstrated a large L4/5 central and slightly right-sided disc protrusion. Notwithstanding those difficulties, Mr. Rizza continued to work. Prior to 1 December 1992, he was absent from work due to his injury from 14 to 16 September 1992 and between 27 October and 6 November 1992.

During 1993, subject to it flaring up occasionally, Mr. Rizza's back injury settled down and he was able to continue with his normal duties, although on occasions, he deliberately avoided certain heavy tasks. He was absent from work as a result of back problems only between 13 and 15 July 1993. Medical opinion was that Mr. Rizza had sustained a disc prolapse, but his condition appeared to be settling down. During 1994, he continued to experience some pain in his lower back and was absent from work for only relatively short periods in early and late 1994.

In August 1995, Mr. Rizza was promoted to Project Manager which involved him essentially in office work although some site visits were required. During 1995, he continued to experience back pain. Further tests were carried out and he consulted his doctor about the injury, but he took little time off work. He suffered a flair-up of his back injury again in about December 1995 and after that, episodes of back pain became more frequent which caused him to become frustrated and depressed. This, in turn, changed his approach to work. The back pain was a constant distraction and he found it difficult to focus on his work. As a consequence of experiencing the back pain and the frustration as to his condition, he terminated his employment with the respondent on 1 August 1997. Prior to and subsequent to that, he found that work activities brought on severe back pain. He had been treated by a number of doctors over the years prior to terminating his employment in relation to his back injury and it seems that the medical opinion was that there was a significant possibility that the injury would deteriorate in the foreseeable future.

Mr. Rizza commenced proceedings in the County Court on 10 July 1997 claiming common law damages under s.135A(2)(b) of the Act in respect of his back injury. It was the plaintiff's case that although he suffered the injury on 11 September 1992, he was unaware of its ramifications for some years. He claimed that his medical condition, flowing from the injury, had deteriorated progressively, but it was not until early 1996 that he accepted that the injury was as chronic and as debilitating as he now claims it to be. He was also unaware of the incapacity for work that this injury caused until about that time.

In its Defence, the respondent pleaded, inter alia, that the incapacity arising from the injury, was known prior to 1 December 1992. It was the respondent's case that "incapacity" in s.135A(2)(b) meant incapacity for work; since the plaintiff was off work due to the injury for some eleven days prior to 1 December 1992, the incapacity due to the injury was known prior to that date. The respondent did not contend in its Defence, however, that because the plaintiff had not commenced this proceeding before 30 June 1994, his claim was barred in the sense that he could not recover any damages arising from the injury because of the operation of s.135B(2). The respondent raised this claim by way of a notice of contention which it filed on 27 October 1998 pursuant to R.64.17(5) and the appeal was argued on the basis that this was part of the respondent's defence to the appellant's claim.

By summons filed on 24 November 1997, the respondent applied to the County Court for orders that the proceeding be dismissed under R.23.02 of the County Court Rules, because the Statement of Claim failed to disclose a cause of action. An affidavit was filed on behalf of the respondent and an affidavit, sworn by Mr. Rizza, was filed on his behalf. The application was heard on 2 February 1998 and his Honour ordered that the proceeding be dismissed with costs. It seems from the material that his Honour probably accepted the respondent's submission that "incapacity" in s.135A(2)(b) meant incapacity to work and that here, the plaintiff was absent from work due to injury before 1 December 1992 and, therefore, incapacity was known prior to that date. His Honour also appears to have accepted that "incapacity" did not have to arise from a "serious" injury.

In his Notice of Appeal, the plaintiff contends that his Honour erred in construing "incapacity" within the meaning of s.135A(2)(b) as being any incapacity or mere absence from employment. He also contends that his Honour erred in not construing "incapacity" within the meaning of the provision just mentioned, as arising from "the injury", such injury being "a serious injury".

As to the point raised in the respondent's notice of contention, the plaintiff's response will be examined in more detail later, but essentially, it amounts to the submission that on a proper construction of s.135B(1)(b), words like "other than serious injury" be read after the word "injury" as it appears in that provision.

In this proceeding, Alexander Michael Walker (Mr. Walker) suffered a back injury on 16 July 1992 while he was moving a filing cabinet in the course of his employment. Although thereafter he completed the day's work, before leaving, he reported the incident to his superior as well as the fact that he was still experiencing back pain. As his Honour found (and it was not challenged on appeal) Mr. Walker's condition worsened over night and on the following day he consulted his doctor. On medical advice, he remained off work for three weeks. During that period the pain persisted notwithstanding his taking of medication. He was admitted to hospital for approximately eight days where he received treatment using traction and a course of physiotherapy. His condition improved somewhat, although he still experienced niggling pain in his back.

On returning to work, Mr. Walker initially performed part-time duties, but eventually resumed full-time activities. On 19 November 1992, he resigned from his employment after losing his licence as a result of a drink-driving offence. He remained unemployed during the whole of 1993. During that year the niggling pains in his lower back persisted and on a number of occasions, he returned to his doctor for treatment. It was common ground on appeal that this situation continued during 1993 and that, by January 1994, Mr. Walker's back pain became so severe that his doctor referred him to a number of specialists, including the orthopaedic surgeon, Mr. Love. He performed a myelogram which indicated the possible presence of some internal disc disruption to the lower back region.

Later in 1994 Mr. Walker's back condition deteriorated further and he became progressively more disabled with the result that in October 1994, he had to undergo a spinal fusion operation. This operation was not successful and a second operation was performed in March 1995. In January 1995, his doctor had noted that the plaintiff was significantly disabled and was unlikely to return to any form of paid employment in the foreseeable future. His physical and mental conditions arising from his back injury continued to deteriorate. The pain which he experienced was controlled to some extent by strong medication, but this, in turn, affected his mental condition and his ability to work.

On 19 June 1995, Mr. Walker filed this proceeding in the County Court in which he claims pecuniary damages under s.135A(2)(b) of the Act. At trial, however, he pursued only a claim for non-pecuniary damages.

His Honour found that the plaintiff had suffered a "serious" injury for the purposes of s.135A. His Honour also held that the "incapacity" in s.135A(2)(b) is that which renders the injury "serious". In order for the incapacity to be known, the true significance of the injury must be appreciated.

His Honour also found that s.135B did not effectively bar this proceeding merely because it was not commenced prior to 30 June 1994. His Honour concluded that s.135B did not relate to proceedings in respect of serious injuries which are contemplated by s.135A(2)(b), but was concerned with unclassified injuries of the kind considered by the Court in Robart v. Matchplan Pty. Ltd. (Supreme Court of Victoria, Appeal Division, unreported, 21 December 1993). His Honour referred, inter alia, to the second reading speech in relation to the Bill which ultimately became the 1994 amendments to the Act, as showing that the new s.135B(2) was not intended to operate in relation to proceedings brought under s.135A(2)(b) for damages in respect of serious injuries in the workplace under s.135A(2).

Mr. Walker was awarded $175,000 by way of non-pecuniary damages and the defendant has appealed against that decision relevantly on the grounds that the incapacity arising from the plaintiff's injury was known prior to 1 December 1992 and that since this proceeding was commenced after 29 June 1994, no damages can be recovered in respect of the injury by reason of the operation of s.135B(2).

Application of s.135B(2) to proceedings under s.135A(2)(b)

For the purpose of understanding the operation of s.135B(2) it is necessary to examine briefly the legislative history of s.135B and its associated sections. Before 1 December 1992 an injured worker could, under s.135(1) of the Act, bring a common law action in negligence against his or her employer in relation to a workplace injury, but could only recover non-pecuniary loss and only up to a specified amount. In 1992, the Act was amended to give such a worker the right to claim pecuniary damages in such a proceeding, provided certain requirements of the legislation were satisfied. Amendments were made to the principal Act by the Accident Compensation (WorkCover) Act 1992, which took effect on 1 December 1992. A major aspect of the amendments was to give the injured worker, by virtue of the new s.135A, the right to claim pecuniary damages against the employer in respect of the workplace injury, provided such worker fell within the terms of the section. Relevantly, in respect of the pre-1 December 1992 injuries, the amending legislation required the plaintiff to establish that the injury was serious and that the incapacity resulting from it, was not known before that date (s.135A(2)(b)). The worker who was injured in the workplace after 1 December 1992 was also given the right to recover pecuniary damages if he or she could establish, inter alia, that the injury was a "serious injury" and that "employment of that nature was a significant contributing factor" to the injury. For completeness, it should be mentioned that the WorkCare amendments also amended s.135. In effect, they brought the rights of the worker or his or her dependents to claim damages under s.135(1) under, or at least into line with, the regime that operated under the Transport Accident Act 1986. Those rights are, however, relevantly different from those introduced by s.135A and need not be analysed for the purposes of these appeals.

The same amending WorkCover legislation introduced s.135B into the Act. I shall examine this provision in greater detail later, but for the present, I will summarise its relevant provisions. As the heading to it says, s.135B was introduced to deal with claims relating to injuries which occurred prior to 1 December 1992. Sub-section (1) was in the following terms.

"(1) This section applies to: (a) proceedings to which section 135(1) as in force immediately before [the commencement of the amendments] applies that had been commenced before, but the hearing of which had not begun before, that commencement; and (b) proceedings (other than proceedings to which section 135(1) as in force after the commencement of [the 1992 amendments] applies) commenced on or after 1 December 1992 to recover damages in respect of an injury arising before that date."

Sub-section (2) provided that a worker who sought to bring a claim for damages in respect of an injury arising before 1 December 1992 could not recover such damages except in accordance with "this section or s.135(1) or s.135A." Sub-section (3) limited to three months the time within which the worker could bring proceedings under the former s.135(1) in respect of injuries or death arising between 1 September and 1 December 1992. Sub-section (4) prescribed as a condition precedent to the Court hearing "proceedings to which this section applies" the attendance by the parties within a specified period, at a conference at which the Authority had made an offer in settlement or compromise of the claims. Sub-section (6) provided that where the plaintiff in such proceedings obtained a judgment, but in an amount which was no more than 120 per cent of the amount which the Authority had offered under sub-s.(5), the plaintiff had to pay the Authority's costs of the proceeding. As a further disincentive to the plaintiff and his or her lawyers in continuing the proceeding after the compulsory conference, sub-s.(7) reduced the applicable scale of costs by 10 per cent so that even if the plaintiff obtained a judgment in an amount in excess of 120 per cent of the offer, the plaintiff would only recover 90 per cent of the costs otherwise approved in the relevant scale of costs.

The Act was further amended by the Accident Compensation (Amendment) Act 1994 which comprised 129 sections. In terms, the Act had a number of purposes as set out in Part 1. They are stated in the following terms.

"1. Purposes The purposes of this Act are - (a) to amend the Accident Compensation Act 1985 - (i) to revise claims management and procedures; and (ii) to make further provision for occupational rehabilitation, return to work plans and risk management; and (iii) to further enhance the operation of WorkCover; and (iv) to facilitate greater harmonization between WorkCover and workers compensation schemes in other States and Territories; and (b) to make miscellaneous amendments to the Workers Compensation Act 1958, the Accident Compensations (WorkCover Insurance) Act 1993, Transport Accident Act 1986 and the Corrections Act 1986; and (c) to make consequential amendments to certain other Acts."

Section 64 of the 1994 legislation amended a number of provisions of ss.135, 135A and 135B. Section 64(7) re-structured s.135B of the Principal Act whereby it read:

"(1) In this section 'proceedings to which this section applies' means- (a) proceedings to which section 135(1) as in force immediately before the commencement of [the 1992 amendments] applies that had been commenced before, but the hearing of which had not begun before, that commencement; and (b) proceedings commenced on or after 1 December 1992 to recover damages in respect of an injury arising before that date - but does not include proceedings of a kind referred to in a paragraph of section 135(1) as in force on or after 1 December 1992."

Section 64(7) inserted a new sub-s.(2) in s.135B in place of the former sub-section. This provision is in the following terms.

"A worker who is, or the dependents of a worker who are, or may be, entitled to a compensation in respect of an injury arising before 1 December 1992 shall not, in proceedings to which this section applies commenced on or after 30 June 1994, recover any damages in respect of pecuniary loss or damages of any other kind."

Section 64(10) amended s.135B by providing a new cut-off date in sub-s.(3) of it, being 30 June 1994, by which proceedings contemplated by that sub-section must be commenced.

In point of time, the 1994 amending legislation was introduced after the decision of the Full Court in Robart v. Matchplan Pty. Ltd. (in liq.) (Victorian Supreme Court, Appeal Division, unreported, 21 December 1993) which identified an anomaly in the 1992 amendments and held that they did not "make it abundantly clear that for injuries or deaths arising prior to 1 December 1992 apart from the limited exceptions referred to in s.135A of the Act damages may be recovered only in accordance with the pre-1 December 1992 provisions ... as modified by s.135B of the Act". When introducing the 1994 amendments, the Minister said this in his second reading speech (Hansard Debates, Legislative Assembly, 31 March 1994, p.809):

"A major object of the reforms in December 1992 was to limit the time for the bringing of proceedings at common law in respect of WorkCare injuries or deaths. The measures introduced at that time were intended to have the effect that proceedings in respect of injuries or deaths arising prior to 1 September 1992 could not be commenced on or after 1 December 1992 and proceedings in respect of injuries or deaths arising between 1 September 1992 and 30 November 1992 could not be commenced on or after 1 March 1993. [This seems to be a reference, inter alia, to s.135B(3) which imposed time limits in respect of claims for non-pecuniary loss.] The decision of the Supreme Court in the case of Robert v. Matchplan Pty Ltd (In Liquidation) has shown that the amendments made at that time did not achieve the government's intentions in those respects. In the light of that decision and to resolve all doubt the amendments made by the bill are intended to make it abundantly clear that, for injuries or deaths arising prior to 1 December 1992 - apart from the limited exceptions referred to in section 135A of the act - damages may be recovered only in accordance with pre-1 December 1992 provisions - in other words, the WorkCare provisions - as modified by section 135B of the act. In recognition that the court has found a legal loophole to exist, however, and that legal process may have already commenced or be about to commence, the amendments will permit proceedings in respect of injuries or deaths arising before 1 December 1992 to be commenced up to and including 29 June 1994. Under no circumstances can proceedings in respect of such injuries or deaths be commenced after that date except for those which come within the limited exceptions to section 135A. The opportunity has also been taken to amend sections 135 and 135A of the act to clarify the operation of those provisions in respect of injuries and deaths arising on and after 1 December 1992."

The plaintiffs point to this speech as showing that it was intended that the 1994 amendments to ss.135A and 135B were to do no more than close "the loophole" said to have been found by the Full Court, by providing that in respect of pre-1 December 1992 non-serious injuries, damages could not be recovered in proceedings brought after 30 June 1994. But, they say, the new s.135B(2) has no application to proceedings brought under s.135A(2)(b) in respect of "serious" injuries. The plaintiffs refer particularly to the Minister's words "apart from the limited exceptions referred to in s.135A of the act" as evincing the intention that claims under s.135A(2)(b) would not be affected by the 1994 amendments. They submitted that bearing in mind that he was speaking only of pre-1 December 1992 injuries, the reference to s.135A by the Minister in that context could only have been a reference to sub-s.(2)(b) of it and that, therefore, s.135B(2) was to operate only in respect of claims relating to injuries which were not "serious". In order to give effect to this intention, say the plaintiffs, words such as "which is not a serious injury" should be inserted after the word "injury" in the new para.(b) of s.135B(1). If the section were so construed, proceedings brought under s.135A(2)(b) would not fall within that paragraph and, therefore, s.135B(2) would not apply to such proceedings.

The plaintiffs further contend that if para. (b) were not so interpreted, there would be an inconsistency between s.135A(2)(b) and s.135B(2) where proceedings were commenced after 29 June 1994. The construction of para.(b) for which the plaintiffs contend would, they say, eliminate such an inconsistency. According to their argument, the Court should strive to achieve that end in the way proposed also because -

(a) if s.135B(2) were to prevail, s.135A(2)(b) would have no practical operation after 30 June 1994;

(b) s.135A(2)(b) is an enabling section which restores the right to recover (pecuniary) damages which was taken away by s.135A(1). Section 135B does not refer to s.135A and does not use unequivocal terminology to destroy or diminish the entitlement provided by s.135A(2)(b);

(c) the second reading speech, to which resort should be had because of the inconsistency referred to earlier in accordance with s.35 of the Interpretation of Legislation Act 1984, shows that there was no intention to extinguish the rights under s.135A(2)(b) after 29 June 1994 or at all.

The plaintiffs point further to the difficulty in discerning a logical legislative intent to a number of aspects of the amendments to s.135B.

In my view, the starting point in analysing the construction and operation of s.135B(2) is not the second reading speech, but the words of the provision itself, read in their proper context. See R. v. Boucher [1995] VicRp 7; [1995] 1 V.R. 110, 123, 124. In so construing the provision, it is necessary to have regard to its operation prior to the 1994 amendment.

Looking at the WorkCover legislation of 1992 so far as s.135B is concerned, in terms, it applied to all proceedings that fell within sub-s.(1)(a) and (b). It probably also applied to proceedings contemplated by sub-s.(3) because it granted a "worker" limited rights to bring proceedings to recover damages effectively under the pre-1992 s.135(1) where the proceedings were issued within three months of the commencement of the 1992 legislation and providing that the claim was in respect of an injury or death arising on or after 1 September 1992 and before 1 December 1992. But irrespective of whether that is so, proceedings under s.135A(2)(b) were proceedings to which s.135B applied. In my view such proceedings came within the words in s.135B(1)(b) "proceedings commenced on or after 1 December 1992 to recover damage in respect of an injury arising before that date."

The question then arises, was this position changed by the 1994 amendments to s.135B? So far as is relevant, the 1994 amendments to s.135B made no material changes to sub-s.(1), notwithstanding that they excluded from the operation of s.135B, proceedings brought under s.135(1) as it was introduced in 1992. This exclusion is consistent with the apparent scheme of the legislation that such proceedings be relevantly tied to the Transport Accident Act 1986. Hence, the amendments to sub-s.(1) of s.135B in 1994 did not alter the situation that proceedings brought under s.135A(2)(b) were to be governed by, inter alia, s.135B. Before going on to look at the new sub-s.(2) introduced in 1994 to see if it altered that position, it is plain that the 1994 changes to sub-s.(3) and to the other sub-sections of s.135B, did not do so.

The new sub-s.(2) precludes the recovery of "damages in respect of pecuniary loss or damages of any other kind" in proceedings to which s.135B applies that have been commenced after 29 June 1994. This provision does not alter the operation of sub-s.(1) which, as I have said earlier, operates to make s.135B apply to proceedings under s.135A(2)(b). Since proceedings under s.135A(2)(b) fall within s.135B(1)(b), the new sub-s.(2) operates to preclude recovery of damages brought pursuant to s.135A(2)(b) if such proceedings are filed after 29 June 1994. That this consequence was intended is made fairly clear by the words "any damages in respect of pecuniary loss" as they appear in sub-s.(2). Bearing in mind that the provision deals with pre-1 December 1992 injuries, those words must be referring to claims brought under s.135A(2)(b). Not to give those words that meaning would leave them with no work to do.

In fact, unless s.135B(2) operated in relation to s.135A(2)(b) proceedings there would be no real point to its presence. Broadly, there are two types of claim that could have been brought in respect of pre-1 December 1992 injuries. One was, for example, under s.135(1) in respect of injuries that were not serious injuries. The other was under s.135A(2)(b) in respect of serious injuries. Claims (for non-serious injuries) brought under s.135(1) as it operated post-1 December 1992, have been excluded from the operation of s.135B by the 1994 changes to sub-s.(1) of it, as is referred to earlier. As to claims for non-serious injuries brought under the former s.135(1), the proceedings by which they are brought are relevantly governed by s.135B(3). The new cut-off date in respect of those claims is specifically dealt with by the 1994 amendments by a change to s.135B(3) which extended the relevant period in respect of those claims to 30 June 1994. Thus, there would be no need for s.135B(2) if its only purpose was to operate in respect of claims brought under s.135(1). On the other hand, the new sub-s.(2) would have work to do if it were read as extending to claims under s.135A(2)(b).

It seems to me that the 1994 amendments to ss.135, 135A and 135B evinced a scheme to impose an effective cut-off date, namely, 30 June 1994, in respect of claims brought in relation to pre-1 December 1992 injuries. For reasons I have given, proceedings under s.135A(2)(b) are so restricted. So are proceedings under s.135B(3) by reason of the 1994 amendments to that sub-section, to which I have referred earlier. The same applies to claims that were commenced under the pre-1992 version of s.135(1). Those claims, necessarily, are claims in respect of pre-1 December 1992 injuries which involve claims for non-pecuniary loss which are covered by the words "damages of any other kind" in the new s.135B(2).

Thus, taking those factors into account, the plain reading of the words of the section leads one to the conclusion that s.135B(2) operates in relation to claims brought under s.135A(2)(b). There is, perhaps unusually for this legislation, relatively little ambiguity about the operation of those provisions.

In the light of this, there is no need to refer to the second reading speech, assuming that were permissible having regard to the conclusion just described. In my view, it would be inappropriate to resort to parliamentary debates in order to seek to create an ambiguity in a section which is otherwise, at least in relative terms, clear. In Masters v. McCubbery [1995] VICSC 209; [1996] 1 V.R. 635, Winneke, P. said this, at p.646, in relation to this point:

"We were asked to take these comments [in the second reading speech] into account in forming a view as to the legislative scheme to be found in the Act. This (so it was contended) we are empowered to do under s.35 of the Interpretation of Legislation Act 1984 .... Resort to this section has become almost common place as parties strive to find support for the proposition which they seek to make. In my view the court needs to be careful not to permit recourse to this section to undermine its primary function of seeking to ascertain the intention of the legislation from the content of the Act itself. So commonly is the court asked to refer to the speeches in Hansard, pursuant to the authority given by this section, that it is necessary to keep reminding ourselves of the caution referred to by the court in R v. Kean & Mills [1985] VicRp 21; [1985] V.R. 255 at 259: 'We were urged to refer to the Attorney-General's second reading speech in the Legislative Council on the Bill... It was said that we were entitled to do so pursuant to s.35(1) of the Interpretation of Legislation Act 1984. It is unnecessary to attempt the interpretation of that section. It is sufficient to say that apparently the Court is not obliged to refer to the Minister's speech. It "may" do so. The criteria for the exercise of such a power seems, however, not to be specified.'"

Similar views were expressed in Mills v. Meeking [1990] HCA 6; (1990) 169 C.L.R. 214 at pp.223, 226 and in R. v. Boucher [1995] VicRp 7; [1995] 1 V.R. 110, at pp.121-124.

But, even if one were to have regard to the second reading speech with the view to finding the "true purpose" of the amendment, it would not alter the conclusion set out earlier as to the operation of s.135B(2). Looking at the speech, it is clear that it was not intended to convey anything like an exhaustive explanation of the then proposed amendments to ss.135, 135A and 135B, or of the 1992 amendments. For example in relation to the WorkCover legislation, the first paragraph of the speech deals only with the "major" object of the 1992 reforms, and effectively refers only to the limitation of time that was placed by s.135B(3) on the bringing of claims for damages (for non-pecuniary damages) under the former s.135(1).

The second paragraph of the speech is confusing insofar as it seeks to deal with s.135A and s.135B, having regard to the relevant terms of the Bill. In the first sentence, the Minister seems to limit the relevance of Robart to that part of the 1992 amendments to which he had referred in the first paragraph. He refers to the decision as one which relates to the "government's intention in those respects". Then, he turns to the Bill, saying that it intends to make "abundantly clear" that for pre-1 December 1992 injuries or deaths - "apart from the limited exceptions referred to in s.135A" - damages may be recovered only in accordance with the former provisions of s.135(1) as modified by s.135B of the Act. He goes on to say that under no circumstances could proceedings in respect of "such injuries or deaths" (which had arisen prior to 1 December 1992) be commenced after that date except those which came within the limited exceptions to s.135A.

Since he is speaking of injuries or deaths prior to 1 December 1992, the Minister can be taken to be referring, in the context of s.135A, to claims covered by s.135A(2)(b). If that is so, then as a matter of logic, he is to be understood as saying that the Bill was intended to operate so as to preclude the recovery of damages for pre-1 December 1992 injuries in proceedings commenced after 29 June 1994, except for claims in proceedings that are brought under s.135A(2)(b). But if the Minister meant to convey that s.135B(2) would operate only in respect of proceedings under the pre-1992 s.135(1), there would be no need for s.135B(2) because, as mentioned earlier, the "modification" to which he refers (extending the relevant period to 30 June 1994) is contained in the 1994 amendments to s.135B(3), which applies to such proceedings. The only sensible explanation for the inclusion of s.135B(2) in the Bill would be if it were to place the same time limit on proceedings under s.135A(2)(b) as is contained in s.135B(3). It would mean that in relation to all proceedings concerning pre-1 December 1992 injuries, be they serious or not, there would be an effective bar against bringing them after 29 June 1994. The Minister, however, did not say that directly or indirectly, but what he did say was confusing bearing in mind particularly that the time limitations in respect of the relevant proceedings brought under the former s.135(1) were specifically dealt with by the amendments to s.135B(3).

In those circumstances, the second reading speech does not help to interpret what Parliament intended by the terms of s.135B(2). This is a case where it is more helpful to confine attention to the words used by Parliament. Adopting that approach, the operation of s.135B(2) is relatively clear and is consistent with the scheme introduced by those amendments which was aimed at effectively barring after 29 June 1994, all proceedings for pre-1 December 1992 injuries or deaths.

Consequently, bearing in mind the meaning that must be given to s.135B(2) such that it operates in respect of relevant claims for pecuniary loss (under s.135A(2)(b)) and probably for non-pecuniary loss "damages of any other kind", there is no inconsistency as was contended for by the plaintiffs between s.135A(2)(b) and the new s.135B(2). Claims under s.135A(2)(b) brought after 29 June 1994, will not entitle the plaintiff to recover pecuniary or other damages. There is, therefore, no warrant in reading into the new s.135B(1)(b) the words contended for by the plaintiffs. Moreover, even if s.135A(2)(b) were treated as an enabling provision, it does not follow that subsequent legislation cannot effectively terminate its operation at some future date by means of a "sunset" clause. Furthermore, whilst there is force in the plaintiffs' submissions that it is difficult to discern the logical intent and the legal efficacy behind some of the amendments to s.135B (such as the reference to "the dependants of a worker" in the new s.135B(2)), it seems clear enough that the reason for introducing the new sub-s.(2) was to produce the situation where there would be no exposure after 29 June 1994 to pre-1 December 1992 work related injury claims.

Once it is accepted that the new s.135B(1)(b) cannot be interpreted as contended for by the plaintiffs, the new sub-s.(2) must operate to deny a worker the right to recover damages claimed under s.135A(2)(b) of the Act in respect of pre-1 December 1992 serious injuries, if the proceeding was commenced after 29 June 1994.

Since the plaintiffs here issued their proceedings after 29 June 1994, they are barred by s.135B(2) from recovering damages.

The principles applicable to the determination of the question of whether the incapacity arising from the relevant injury was known prior to 1 December 1992 for the purposes of s.135A(2)(b) are discussed by Winneke, P. in State of Victoria v. Collins. His Honour agreed with the conclusion of Balmford, J. that the incapacity arising from the injury is not the temporary incapacity for work produced by the initial result, but rather is "serious injury" incapacity which "becomes known" when events demonstrate that the victim of the injury is suffering from a serious long term impairment or loss of a body function. His Honour said that "incapacity" in s.135A(2)(b) is the incapacity which becomes known when the injury is understood to be a "serious" one within the meaning of sub-s.(19). He was also of the view that "incapacity" in sub-s.(2)(b) was not confined to "work incapacity". He said that "the incapacity of which the section speaks is used in its more general and accepted sense of 'physical or mental incapacity', namely an incapacity to the victim deriving from the injury and its consequences."

Having regard to the conclusion I reached in relation to the first question, it is, strictly, not necessary to consider the second question. Nevertheless, had I answered the first question in the negative, I would have concluded in Rizza that it was at least arguable that the incapacity of the plaintiff was not known until after 1 December 1992 and that, therefore, his Honour should not have entered summary judgment for the defendant. It would be open for a tribunal of fact to find that it was not appreciated that the injury suffered by Mr. Rizza was a serious injury until well after 1 December 1992. The tribunal could properly conclude on the evidence that was before his Honour, that Mr Rizza's injury effectively subsided not long after September 1992 and did not produce an inhibiting effect on him of a serious kind until late 1995 or early 1996. Put another way, the judge or the jury could properly conclude that the injury was "progressive" in the sense that Winneke, P. used the term in Collins and that it was not understood to be a "serious" injury until about late 1995 or early 1996. In those circumstances, the incapacity from the injury would not have become known until after the statutory date referred to in s.135A(2)(b). Consequently, I would have upheld the appeal.

For like reasons, I would have dismissed the appeal in Walker, but for my conclusion in relation to the operation of s.135B(2). His Honour was right when he said that in order for the incapacity to be known, the true significance of the injury must be appreciated. It was, in my view, clearly open to his Honour to find on the evidence before him that this had not occurred until late 1994 or early 1995.

In view of my conclusions as to the operation of s.135B(2) in respect of the two appeals, I would dismiss the appeal in Rizza and uphold the appeal in Walker.

Compensation Act 1985

Compensation Act 1958

Accident Compensations (WorkCover Insurance) Act 1993

Legislation Act 1984

Compensation Act 1985

Compensation Act 1958

Accident Compensations (WorkCover Insurance) Act 1993

Legislation Act 1984

At a glance

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Decision date

Before

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Judgment (60 paragraphs)

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Legislation Cited (10)