SAS TRUSTEE CORPORATION v BUDD

Police Regulation (Superannuation) Act 1906 Victims Compensation Act 1987 LEGISLATION CITED: Workers Compensation Act 1987 Victims Compensation Act 1996 (later renamed the Victims Support and Rehabilitation Act 1996)

BI (Contracting) Pty Ltd v Strikwerda [2005] NSWCA 288 Boncristiano v Lohmann [1998] 4 VR 82 Franklins Self Serve Pty Ltd v Wyber (1999) 48 NSWLR 249 Re Application of Foster [1982] 2 NSWLR 481 CASES CITED: SAS Trustee Corporation v Rayment (2000) 49 NSWLR 175 Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 Townsend v Stone Toms & Partners (1984) 27 BLR 26 Waugh v Kippen (1986) 160 CLR 156 at 164

PARTIES: SAS TRUSTEE CORPORATION v Esca BUDD

Appellant: G Watson SC/ T Ower COUNSEL: Respondent: R de Meyrick

Appellant: Shaw McDonald Pty Ltd SOLICITORS: Respondent: Taylor & Scott

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40744/2004

MASON P HANDLEY JA McCOLL JA

1 MASON P: The Court heard full argument that disclosed that there should be leave to appeal. 2 On 6 November 1995 the respondent was injured in the course of duty as a police officer. While making an arrest he was set upon by a group of people, punched, knocked to the ground and kicked. 3 On 17 February 1997 he applied for compensation under the Victims Compensation Act 1987. He claimed as a "primary victim of an act of violence". Although the 1987 Act was repealed on 2 April 1997 upon the commencement of the Victims Compensation Act 1996 (later renamed the Victims Support and Rehabilitation Act 1996), the 1996 Act provided that pending applications were to continue to be dealt with in accordance with the repealed Act (see Schedule 3, cl 3). 4 On 16 February 1999 the Victims Compensation Tribunal made a global award in the sum of $15,000. The reasons for determination show that the Tribunal was aware that the applicant had what it termed "a workers compensation entitlement". The Tribunal noted that it seemed clear that the applicant had permanent impairment(s), but added that nowhere was there "any report which puts any impairment in a percentage level to determine whether the applicant has claims under sections 66 and 67 of the Workers Compensation Act". 5 The Victims Compensation Act 1987 conferred a general right of appeal to the District Court (s29). The respondent's appeal to that Court was successful in that his award of victims compensation was increased to $40,000, the maximum for injury in respect of an act of violence under the 1987 Act (s16(5)(a)). That appeal was heard and determined by Judge William Hosking QC. Regrettably, no transcript of proceedings or official record of reasons for judgment has been located. A document that appears to be an observer's careful record of his Honour's reasons was objected to at first instance in the current proceedings and its tender was not pressed (AB 86). This evidentiary void is the backdrop to the issues agitated in this appeal. No one suggests that the global award of $40,000 victims compensation was the product of any legal or factual error. 6 The "worker's compensation entitlement" adverted to in the reasons of the Tribunal is more accurately described as a right to a "gratuity" in accordance with the Police Regulation (Superannuation) Act 1906 (PRSA). That Act confers entitlements on a member of the police force if he or she is "hurt on duty", ie "injured in such circumstances as would, if he were a worker within the meaning of the Workers Compensation Act 1987 entitle him to compensation under that Act" (s1). 7 Of present relevance, s12D(1) of the PRSA provides:

Gratuities to members hurt on duty in respect of loss of limbs, medical expenses etc

(1) STC may pay to a member of the police force who is hurt on duty or to a former member of the police force who was hurt on duty when he or she was a member of the police force a gratuity of such amount as STC determines, not exceeding the amount that, in the opinion of STC, would have been payable to the member or former member under Divisions 3, 4 and 5 of Part 3 of the Workers Compensation Act 1987 if the member were, or the former member had been, a worker for the purposes of that Act.

"STC" is the present appellant. 8 The respondent's solicitor applied for a s12D gratuity by letter dated 28 March 2002 (AB 74). The letter referred to the acts of violence that occurred in the incident on 6 November 1995, stating: Our client received several injuries, including injuries to his lower right leg and right little finger/hand. Since suffering the injuries to his right leg and right little finger/hand, our client has experienced ongoing pain and disability. It is in these circumstances that our client seeks compensation under section 12D. 9 There has never been dispute about the respondent having been "hurt on duty". The letter of application was therefore correct in its concluding paragraphs, summarising the true issues involved in the particular claim as follows: We therefore submit that the only issues arising in our client's case is whether he now suffers from permanent impairment or loss, and if so, the degree thereof. PERMANENT LOSS The medical report tendered with this submission provides strong evidence in support of our client's claim for a gratuity. On the basis of the expert opinions expressed by Dr Ian Collins our client claims compensation for the following: (a) 8% permanent loss of the efficient use of the right leg below the knee (b) 10% permanent loss of the efficient use of the right hand, or alternatively, 60% permanent loss of the efficient use of the right little finger. In addition, our client claims further compensation for the pain and suffering that he has experienced in relation to the above listed losses.

10 The former claims were for "permanent impairment compensation" in accordance with s66 of the Workers Compensation Act 1987 (as incorporated by s12D of the PRSA). 11 The claim of "further compensation for … pain and suffering" was a reference to s67 of the Workers Compensation Act 1987, which provided an additional entitlement to receive compensation on this account resulting from a degree of permanent impairment of 10% or more. 12 The application was determined by the appellant and notified in the following terms (AB 77-8): At its meeting on 28 November 2002, the Police Superannuation Advisory Committee (PSAC), under delegation from the SAS Trustee Corporation (STC), approved a payment of $12,600.00 which represents 8% permanent loss of right leg below the knee ($5,600.00) and 10% permanent loss of right hand ($7,000.00) as a result of the injuries sustained on 6 November 1995. However, as Mr Budd has already received $40,000.00 from the District Court for the injuries sustained on 6 November 1995 and the award exceeds the gratuity payable in relation to the injuries, there is no amount to be paid as a gratuity. Should you consider yourself aggrieved by the Committee's decision, you may, in accordance with section 21 of the Police Regulation (Superannuation) Act, 1906 and within a period of 6 months after receipt of this letter, apply to the Compensation Court of New South Wales for a determination. You should note that there is no entitlement for pain and suffering under section 67 with regard to injuries made in this claim as the lump sum amount determined is less than 10% of the maximum payable under section 66.

13 The penultimate paragraph of this extract refers to the right conferred by s21 of the PRSA to seek a judicial determination, inter alia, in relation to a decision made by the STC on a matter arising under the PRSA by reason of a member of the police force being hurt on duty. The respondent's application for such a determination was filed in the Compensation Court on 2 June 2003. In consequence of the abolition of the Compensation Court, the determination of that application passed to the District Court as part of its "residual jurisdiction" under Division 8A of the District Court Act 1973. Thus, the proceedings came to be heard and determined by Walker DCJ. Section 142N of the District Court Act confers the right of appeal to the Court of Appeal that has been exercised in the present matter, being an appeal in point of law or on a question as to the admission or rejection of evidence. 14 The Application for Determination initially filed in the Compensation Court indicated that the respondent no longer pressed for compensation for pain and suffering in accordance with s67. It also disclosed that he had no complaint in relation to the s66 component of permanent impairment compensation based on 8% permanent loss of right leg below the knee ($5,600) and 10% permanent loss of right hand ($7,000) (AB 4). The only matter tendered for judicial determination related to the appellant's decision that had stated: However, as Mr Budd has already received $40,000.00 from the District Court for the injuries sustained on 6 November 1995 and the award exceeds the gratuity payable in relation to the injuries, there is no amount to be paid as a gratuity. 15 This decision was based on the application of s12E(2) of the PRSA with respect to the gratuity that the appellant was otherwise minded to pay in accordance with s12D(1). Section 12E should be set out in full. It provides (emphasis added):

(1) Where a member of the police force is hurt on duty in circumstances creating a legal liability in some person to pay damages in respect thereof and those damages are recovered, a gratuity shall not be payable under section 12B or 12D to the person who recovered the damages or, if a gratuity under section 12B or 12D has already been paid to the person who recovered the damages, the person shall be liable to repay to STC out of those damages the amount of the gratuity so paid.

(2) In subsection (1), "damages" does not include any sum ordered or directed to be paid pursuant to any provision of the Victims Compensation Act 1996 by way of compensation for injury, but any such sum so paid to a person shall be deducted from any gratuity subsequently payable to the person under section 12B or 12D in respect of the injury . (3) If a gratuity is paid under section 12B or 12D to or in respect of a member of the police force who is hurt as referred to in subsection (1), STC is entitled to be indemnified by the person liable to pay the damages (being an indemnity limited to the amount of those damages). (4) If any payment is made under the indemnity and, when the payment is made, a judgment has not been obtained against the person paying under the indemnity, the payment is, to the extent of its amount, a defence to proceedings against that person for damages. (5) If any payment is made under the indemnity and, when the payment is made, judgment has been obtained for damages against the person paying under the indemnity (but judgment has not been satisfied), the payment, to the extent of its amount, satisfies the judgment. (6) For the purpose of applying this section to or in respect of a gratuity paid or payable under section 12B or 12D, STC may request the person to whom the gratuity is payable or has been paid to provide STC with an authority: (a) to obtain from a third person any information or evidence that is relevant to the question of whether damages (as referred to in subsection (1)) have been recovered, and (b) to advise any such person of any payment under this section. (7) If a person does not comply with a request to provide the authority, STC is not obliged to proceed to pay the gratuity concerned. (8) Nothing in this section limits the operation of section 68 of the Superannuation Administration Act 1996 .

16 I was at one stage troubled as to the District Court's jurisdiction to entertain the respondent's application in relation to the s12E(2) aspect of the STC's decision. Closer examination of s21(1)(a) of the PRSA has dispelled these doubts. 17 Before Judge Walker QC there was an issue as to whether s12E(2) extended to compensation paid in relation to an application for compensation made under the Victims Compensation Act 1987 and not finally disposed of before the date of assent to the Victims Compensation Act 1996 (ie 2 December 1996). This point is no longer in dispute. 18 The matters remaining in contest concern the general scope and particular application of s12E(2). 19 It is clear that the respondent suffered a number of injuries in the affray additional to the two injuries affecting his right leg and right hand that were later the subject of his claim for a s12D gratuity. The Application for Compensation as a Primary Victim filed in the Victims Compensation Tribunal in 1997 had described the injuries suffered in the incident on 6 November 1995 as follows (AB 19): Bruising and abrasions to left side of my ribs with an amount of swelling left side of my neck and jaw. Right hand and right little finger. Swelling and bleeding to the inside of my mouth. Lower right leg. I suffered extensive bruising to various parts of the arms, body and leg. From subsequent treatment the injury to my leg has been diagnosed as damage to the nerves. My right little finger is disfigured because of damage to the joint. My teeth have now become uneven since suffering the blows to the jaw region, and I have experienced ongoing problems with my jaw joint and leg. 20 There is ample evidence that this was a genuine claim. Medical reports attest to bruising to the ribs, loosened teeth and a bruised eye. Some of these injuries have had long term effect, including some impairment to the jaw and a continuing moderate stress reaction. 21 It is equally clear that the only injuries relied upon as permanent impairments attracting a s12D gratuity were those affecting the right leg and the right hand (Green 3 ss2-3, 4 s11). 22 The Answer filed by the present appellant denied liability to pay upon the following ground: Having regard to the damages awarded to the amount of damages ($40,000) already awarded by the District Court to the Applicant in respect of injuries sustained on 6 November 1995 when he was hurt on duty, the whole of which is available as a set off for any gratuity payable pursuant to Section 12D of the Police Regulation (Superannuation) Act 1906 , there is no further gratuity payable. 23 Walker DCJ rejected this defence and made an order in the form of a declaration that no deduction should be made by the STC under s12E(2) of the PRSA in respect of Judge Hosking's award to the appellant of $40,000 under the Victims Compensation Act. 24 The crux of his Honour's reasoning was: I take the view that a proper construction of the expression "the injury" as used in section 12E(2) means "the injury in respect of which the order for victims compensation was made." The question then becomes one of the evidentiary onus of proof. There is no authority on which party bears the onus. The maxim "he who asserts must prove" would suggest that the STC who wishes to make the deduction should provide the evidence to prove it. The parties have referred the court to the decision of His Honour Judge Johns in Russell v J J Woods & Son's Carriers Pty Ltd (2000) 20 NSWCCR 103, a case involving the application of s151Z of the Workers Compensation Act 1987 . There Judge Johns held that the onus of establishing whether or not a deduction has been accounted for falls upon the respondent raising the defence. I agree with my learned colleague's approach which is consistent with the common law of negligence involving the disentanglement of multiple possible causes of injury. Those authorities hold that the defendant has an evidentiary onus of proof to disentangle with reasonable precision causes it alleges are contributing to a disability that are not related to its tort and accordingly should not be a basis for compensation (see Purkess v Crittenden (1965) 114 CLR 168 and Shorey v PT Pty Ltd [2003] HCA 27, 197 ALR 410 at [46]). I have reached the conclusion therefore, that the opponent having raised the defence under s12E(2) and having failed to put before the court probative evidence that could lead to the conclusion either that Judge Hosking considered the application of section 21 or apportioned any amount to the hand and leg injuries that could be deducted under s12E(2) then this court should [sic] is not in a position to comply with the requirements of s12E(2) and not in [sic] order the deduction. 25 In my opinion, this passage reveals a dispositive error of law with respect to the interpretation and application of s12E(2). 26 The global award of victims compensation represented a sum ordered to be paid by way of compensation for injury, whether or not the injury compensated went beyond the subject matter of the s12D gratuity. It sufficed that it addressed and embraced the loss stemming from that injury. 27 It was obviously necessary for the STC to show (as it did) that a sum of money was ordered or directed to be paid pursuant to the Victims Compensation legislation by way of compensation for the injury for which a gratuity was claimed. But, beyond that, s12E(2) is mandatory within its sphere of operation.

The construction issue 28 This point was not raised below, but is conveniently addressed first. 29 The interpretation of s12E(2) adopted by the appellant in its original determination and pressed by it in this Court contends that the words "any sum ordered or directed to be paid pursuant to any provision of the Victims Compensation Act 1996 by way of compensation for injury" embraced the award made by Judge Hosking on appeal from the Tribunal's original award. It was a relevant award "of compensation for injury" because it was a global sum payable with respect to the claim of "compensation for injury" that was "in respect of an act of violence" (cf Victims Compensation Act 1987, ss11(a), 16(5)(a), 29). There was nothing in the evidence to show that the injuries to the right leg and right hand had somehow been carved out of the totality of the injuries for which victims compensation was awarded. The respondent's own description of those injuries is set out above. 30 The respondent urges a narrower construction of s12E(2). He submits that the second part of s12E(2) is only engaged if a gratuity is payable in respect of "the injury" (ie the same injury and no more) as that which called forth the earlier award of victims compensation. The respondent urges this construction, invoking the principle that a generous construction is appropriate for a legislative scheme designed to confer benefits on injured police officers (Re Application of Foster [1982] 2 NSWLR 481, Waugh v Kippen (1986) 160 CLR 156 at 164). 31 In my opinion, such an approach to s12E(2) would constrict the provision in a manner not called for by its language and that would be destructive of its evident purpose of preventing double compensation. Section 12E(2) is convoluted in expression, but its core stipulation and underlying purpose are clear. As Handley JA pointed out in SAS Trustee Corporation v Rayment (2000) 49 NSWLR 175 at 178[14]: The off-setting of compensation for injury received under the 1987 Act against a future gratuity under s12D for non-economic loss assessed in accordance with Div 4 of the Pt 3 of the Workers Compensation Act 1987 [is] both rational and fair…. 32 Section 12E(2) seeks to prevent the injustice of double compensation. In one sense it goes no further than ensuring that a common law principle of general application is not overlooked when considering the unusual juridical concept of a statutory entitlement to a "gratuity". The provision reinforces the application of a general principle frequently applied in relation to statutory schemes for the payment of damages or compensation (see generally Boncristiano v Lohmann [1998] 4 VR 82 at 89, Franklins Self Serve Pty Ltd v Wyber (1999) 48 NSWLR 249 at 254). 33 The rule against double compensation may be invoked by one or more defendants. If it can be shown that the plaintiff/claimant has already received recompense in any form in respect of the loss for which compensation is claimed against the defendant invoking the rule, then the plaintiff's loss requiring compensation from that defendant is regarded as discharged pro tanto. To award compensation with respect to that loss against that defendant would be to permit double recovery by the plaintiff in respect of a loss no longer calling to be compensated. 34 With respect to the respondent, this approach to the application of s12E(2) does not suffer from the fallacy of overlooking the fact that it is an "act of violence" that triggers an award of victims compensation under the Victims Compensation Act 1987 (Respondent's Written Submissions s15-16). "Act of violence" is certainly the trigger, but compensation is only payable under that Act for injury, expenses and (in the case of primary victims and law enforcement victims) loss of personal effects (ss11-14, 16(5)).

The evidentiary issue 35 The appellant failed in the District Court because Judge Walker QC was not persuaded that the right leg and right hand injuries (in respect to which lump sum gratuities had been determined under the PRSA) were in fact included in the injuries for which there had been an award of victims compensation. The STC had "failed to put before the court probative evidence that could lead to the conclusion either that Judge Hosking considered the application of section 21 or apportioned any amount to the hand and leg injuries that could be deducted under s12E(2)"…. 36 I read that statement about absence of probative evidence that Judge Hosking "apportioned any amount to the hand and leg injuries that could be deducted under s12E(2)" to mean that there was no evidence that Judge Hosking's award included any victims compensation referable (inter alia) to those two injuries. 37 A defendant who invokes the rule against double compensation must establish that the plaintiff has already been compensated with respect to the relevant loss. Sometimes all that can be shown is that the plaintiff has received money from a third party without it being known what the payment was for. It might, for example, relate to legal costs of proceedings that were withdrawn. There may be uncertainty as to the nature of the receipt. In such circumstances, the defendant will have failed to make good the defence. 38 The parties agree that the onus of proof lay upon the appellant to show, in the context of s12E(2), that victims compensation had been awarded by way of compensation for injury that at least included the right leg and right hand injuries calling forth a presumptive entitlement to gratuities under s12D of PRSA. 39 As indicated, it is clear that the Application for Compensation as a Primary Victim included the right hand and right leg injuries in the list of injuries for which victims compensation was sought (par 19 above). These were among the injuries for which the Victims Compensation Tribunal made the global award of $15,000 that was taken on appeal before Judge Hosking. 40 We do not know Judge Hosking's reasons for increasing the victims compensation from $15,000 to $40,000 (the statutory maximum), but there is no reason for inferring that they were based on injuries different from those that had engaged the Tribunal in making the award under appeal. 41 The Tribunal's reasons had noted (AB 24): The reports from Dr Cheung suggest that the applicant may have some permanent impairment perhaps of the jaw, little finger and right knee seeing as how problems exist in 1999 over 3 years after the assault. Nowhere is there any report which puts any impairment in a percentage level to determine whether the applicant has claims under section 66 and 67 of the Workers Compensation Act but it seems clear that the applicant does have permanent impairment(s).

42 Nothing suggests that the victim's appeal to the District Court involved the excision of any of the injuries. After all, the victim was seeking to increase the award of compensation and he was successful in doing so. In his Application for Determination filed in the Compensation Court on 2 June 2003, Mr Budd described the District Court's award of $40,000 as being "for the injury sustained on 6 November 1995" (AB 4). 43 In these circumstances, I cannot accept that there was no probative evidence that Judge Hosking had "apportioned any amount to the hand and leg injuries" in the sense of including those injuries amongst those for which victims compensation was awarded. Judge Walker's conclusion in this regard was erroneous in law. 44 The other evidentiary void pointed to by his Honour related to whether Judge Hosking had "considered the application of section 21". 45 Section s21 of the Victims Compensation Act 1987 provided (emphasis added): In determining the amount of compensation to award under this Part to a person, the Tribunal shall have regard to : (a) any amount which has been paid to the person or which the person is entitled to be paid: (i) pursuant to a direction for compensation under Part 6; (ii) by way of damages awarded in civil proceedings; (iii) under any other Act or law (including any Act or law relating to workers' compensation); and (iv) under any insurance or other agreement; and (b) any other amount which has been received by the person or which (in the opinion of the Tribunal) is likely to be received by the person , in respect of the act of violence or injury sustained in the course of law enforcement to which the application for compensation relates .

46 While s21 in terms addressed the role of the Tribunal, it applied by implication to the District Court when exercising its then unrestricted appellate function conferred by s29 of the Victims Compensation Act 1987. 47 Each party correctly accepts that the presumption of regularity should be applied to Judge Hosking's undisclosed reasoning process. From this it would follow that Judge Hosking would (subject to the evidence and submissions before him) have had regard to the matters required to be taken into account by s21 in reaching his decision to increase the award of victims compensation to the statutory maximum of $40,000. 48 The respondent explains Judge Walker's terse reference to s21 in this manner. Pursuant to s21(b), Judge Hosking was required to have regard, in determining the amount of compensation, to "any… amount… which (in the opinion of the [District Court] is likely to be received by [the respondent] in respect of the act of violence … to which the application for compensation relates". It is possible that his Honour may have considered that the right arm and right leg injuries might later attract the right to a s12D gratuity under the PRSA and, when assessing the victims compensation referable to those injuries, had regard to that likely gratuity, reducing the victims compensation referable to those injuries presumably to nil. The remaining injuries might nevertheless have justified an award of $40,000 victims compensation. 49 This strikes me as a highly unlikely scenario, but that in itself may not be enough to answer the point. There is, however, an answer in principle, in my opinion. There is a line of cases dealing with the rule against double compensation, holding that where the person invoking the rule (usually the defendant) establishes that money was paid to the other party in circumstances capable of attracting the rule (eg with respect to a concurrent claim), it is for the recipient to show that the money was not received by way of compensation for the loss (Townsend v Stone Toms & Partners (1984) 27 BLR 26 at 41, 51, 56 (Eng CA), Boncristiano at 89-90). 50 I incline to the view that these cases involve an evidentiary onus being cast upon the party having access to the relevant information rather than a free-standing principle forming part of the rule against double compensation. Be that as it may, the respondent was party to the proceedings before Judge Hosking, unlike the present appellant. The respondent called no evidence (and did not explain his inability to do so) with reference to identifying the issues raised for determination before Judge Hosking and/or addressed in his reasons for judgment. 51 I have not overlooked the attempt to tender the document purporting to record the reasons for judgment of Hosking DCJ (par 5 above). That document was objected to for want of proof of its derivation (Green 85-6). Its admissibility was not pressed, nor was there any other attempt by the present respondent to cast necessary light upon the subject matter and basis for the award of $40,000 compensation. 52 With respect to Judge Walker QC, the issue is not assisted by reference to Purkess v Crittenden. That case deals with the disentanglement of causes impacting upon the liability of a tortfeasor (see Shorey at [43]-[47]; Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 at [93[-[112], BI (Contracting) Pty Ltd v Strikwerda [2005] NSWCA 288 at [35]-[36]). 53 The respondent submits that the court never gets to this point, because the very matter at issue is whether there was an overlap of claims with respect to the same injury. However, this point is reached because, as I show above, we know that the right leg and right arm injuries remained the subject of the claim for victims compensation. On the construction of s12E(2) that I favour that was sufficient to engage that subsection and the rule against double compensation. 54 I propose the following orders:

1. Subject to the filing of a notice of appeal grant leave to appeal. 2. Appeal upheld. 3. Set aside the orders of Judge Walker QC made on 12 August 2004 and, in lieu thereof, order that the Application for Determination originally filed in the Compensation Court on 2 June 2003 be dismissed. 4. Respondent to pay appellant's costs of the appeal and to have a certificate under the Suitors' Fund Act 1951 if qualified. 55 HANDLEY JA: I agree with Mason P. 56 McCOLL JA: I agree with Mason P. **********

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