Smith v MurphySchmidt Solicitors [2021] QCA 67

PARTIES: KELLY JO SMITH / (appellant) / v / MURPHYSCHMIDT SOLICITORS / ABN 39 191 079 108 / (respondent)

FILE NO/S: Appeal No 7503 of 2020 / DC No 328 of 2018

DIVISION: Court of Appeal

PROCEEDING: General Civil Appeal

ORIGINATING COURT: District Court at Southport – [2020] QDC 114 (Kent QC DCJ)

DELIVERED ON: 9 April 2021

DELIVERED AT: Brisbane

HEARING DATE: 26 March 2021

JUDGES: Morrison JA and Boddice J and Rafter AJ

ORDERS: Appeal dismissed.The appellant pay the respondent’s costs of and incidental to the appeal.

CATCHWORDS: PROFESSIONS AND TRADES – LAWYERS – REMUNERATION – COSTS AGREEMENTS – where the appellant entered a costs agreement with the respondent for legal services relating to a personal injuries claim – where the appellant recovered damages from a settlement – where the respondent deducted its costs pursuant to the costs agreement – whether the settlement was inclusive of refunds – whether the discharge accurately reflected the offer / Social Security Act 1991 (Cth), s 1178, s 1183, s 1184, s 1184C, s 1184D / Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 5, s 9, s 46, s 110, s 419, s 472

COUNSEL: The appellant appeared on her own behalf / R C Morton for the respondent

SOLICITORS: The appellant appeared on her own behalf / McInnes Wilson Lawyers for the respondent

1. MORRISON JA: The appellant seeks to challenge orders made on 12 June 2020,¹ dismissing her claim against the respondent, a firm of solicitors who acted for her. The claim arose out of the settlement of the appellant’s claim for damages for personal injuries sustained by her in the course of her employment. The proceedings were instituted against the appellant’s former employer and the occupier of the premises upon which she was injured.

2. Apart from seeking damages at common law under the Workers’ Compensation and Rehabilitation Act 2003 (Qld),² she also claimed damages against the occupier under the Personal Injuries Proceedings Act 2002 (Qld). In the process the appellant made a claim for WorkCover benefits and received benefits not only from WorkCover, but Centrelink and Medicare.

3. Following a compulsory conference the appellant settled her case by accepting a joint offer from the two prospective defendants. The issues in the trial and on appeal concern the nature of that offer and whether it was inclusive or exclusive of statutory refunds.

Chronology

4. The critical events took place at and subsequent to a compulsory conference held on 11 October 2013 pursuant to the Personal Injuries Proceeding Act. However, there are a couple of relevant steps beforehand. The chronology of relevant events can be established from contemporaneous documents which were largely unchallenged.

5. On 12 September 2013 the respondent sent a letter to the appellant.³ That letter was sent well ahead of the compulsory conference and set out estimated positions depending on what offers might be made and accepted, and what the costs were. One example discussed was if an offer of $400,000 clear of refunds was accepted.⁴ That example also estimated the occupier defendant’s contribution to costs at $35,000.

6. At the end of the compulsory conference the two defendants to the claim made a joint written final offer.⁵ The offer was of $400,000 “inclusive of any statutory refunds”, including any refund to WorkCover. The offer was also expressly said to be “inclusive of all heads of damage and statutory refunds and is subject to execution of a standard Release Discharge and Indemnity by the Claimant”.

7. As required by the Personal Injuries Proceeding Act, the offer remained open for acceptance for a period of fourteen days, that period expiring on 25 October 2013.

8. Three days after the compulsory conference, on Monday 14 October 2013, there were several emails and letters exchanged.

9. The first was an email from the appellant to the respondent, sent at 12.37.⁶ It can be inferred that the email followed a conversation about the outcome of the compulsory conference as it commences with the appellant’s reference to what was said to her. It also questioned what had been said in the 12 September 2013 letter, specifically the estimate of a net sum of $335,000 if the accepted offer was $400,000 clear of refunds.

10. The second was an email at 1.35 pm, enclosing a letter to the appellant dated 14 October 2013.⁷ The letter enclosed the joint final offer and stated that the components of the offer were $400,000 and $35,000 for costs. The letter expressly stated that the offer was inclusive of the WorkCover refund.⁸ As well as calculating the approximate net amount should that offer be accepted by the appellant, the letter went on to contrast an example previously given of an offer which was “exclusive” of refunds,⁹ with the current offer which included the refunds. That letter twice referred to the approximate net amount which would be the consequence of accepting the joint final offer, namely “approximately $288,000”.¹⁰

11. More specifically, Exhibit 6 contained this express statement:¹¹

“In your telephone conversation with [Ms Dale, a solicitor] on 14 October 2013, you have suggested that the Defendants’ joint final offer was clear of the WorkCover refund. That is not correct.

The joint final offer which the defendants made on Friday was inclusive of the WorkCover refund. It was not exclusive of the WorkCover refund. This means the sum of $38,281.05 must be refunded to WorkCover.

As stated above, if you accept the Defendants joint final offer of $400,000.00 plus costs inclusive of the WorkCover refund you will receive approximately $288**,**000.00 clear to yourself after payment of the statutory refund to WorkCover of $38,281.05 and Medicare of approximately $1,838.30 as well as our fees and costs.”

12. Exhibit 6 also recommended that the appellant let the joint final offer expire, that being recommended as the way to negotiate a higher settlement figure.

13. On 16 October 2013, following a conversation with her solicitors, the appellant emailed the respondent seeking “the workcover breakdown of amounts owed”, which was explained as “the workcover amounts that I owe so that I can check it with my own records”.¹²

14. Eight days later, on 24 October 2013, the respondent sent a letter to the appellant.¹³ That letter was in response to a telephone conversation between the appellant and two lawyers at the respondent firm earlier that day, when the appellant requested details of how the respondent had calculated the net figure of $289,000 if the joint final offer was accepted. The letter provided the details of the calculation, as well as twice referring to the consequent net figure of $289,468.44 “clear to you”.¹⁴ The letter reminded the appellant that advice to that effect had been given at the compulsory conference. Once again the recommendation was made to let the joint final offer expire.

15. The following day, 25 October 2013, the respondent sent a letter to the appellant.¹⁵ That letter referred to a telephone conversation with the solicitor at the respondent’s firm and confirmed that the appellant’s instructions were to accept the joint final offer. Although the letter mistakenly said that the offer was “clear of the WorkCover refund”, the calculation of the net position was the same as had been advised the previous day. Once again the recommendation was that the offer not be accepted.¹⁶

16. Four days later on 29 October 2013, the respondent sent another letter to the appellant.¹⁷ The letter confirmed instructions by the appellant given by telephone to Ms Dale that day, to accept the joint final offer. Even though that was referred to as an offer “clear of the WorkCover refund”, that letter again provided the exact same net calculation as had been previously given on two occasions.

17. Acceptance of the joint final offer was communicated to the defendants that day.¹⁸

18. On 6 November the respondent sent the appellant a letter¹⁹ reminding the appellant that she had been given detailed advice in the respondent’s letter of 24 October 2013,²⁰ and that the advice given to her was that she would receive $289,468.44 clear to herself.²¹ The letter also noted that the appellant’s acceptance of the joint final offer was “against our very strong advice not to do so”. The letter advised the appellant that when her instructions were given, the respondent advised her that the offer had been accepted and the consequence was that there was a concluded agreement. Responding to the appellant’s attempts to get a reduction of the WorkCover refund, the appellant was told that such attempts would amount to an attempt to re-open negotiations, there was a concluded agreement, and options to resile from the settlement would be limited and incur considerable cost.²²

19. On 13 November 2019 the appellant signed the release and discharge form.²³ That document recorded that the settlement sum was “$400,000 (gross) plus $35,000 in PIPA costs (as agreed)”. It also recorded the WorkCover refund of $38,201.45.

Consideration

20. The appellant’s outline of submissions attacked many parts of the reasons of the learned trial judge. Many of these were described as findings of fact when they were merely part of the unchallenged chronology. The appellant also contended that there were some specific errors of law. It is convenient to address the various challenges sequentially, referring at the same time to the appellant’s contentions on the relevant point.

Letter dated 14 October 2013

21. The appellant contends that the finding made by the learned trial judge, that she received a letter from the respondent on 14 October 2013, by email that day, was not open.²⁴ Exhibit 6 was the letter of 14 October 2013.²⁵ Its significance is that the respondent advised the appellant by that letter of the nature of the Joint Final Offer made as a consequence of the compulsory conference. In the letter it was said:²⁶

“The Defendants made you a joint final offer of $400,000.00 plus costs of $35,000.00. This offer is inclusive of the WorkCover refund.

If you accepted the Defendants’ joint offer you would receive approximately $288,000.00 clear to yourself after payment of the statutory refund to WorkCover of $38,281.05 and Medicare of approximately $1,838.30 as well as our fees and costs.

…

The joint final offer which the Defendants made on Friday was inclusive of the WorkCover refund. It was not exclusive of the WorkCover refund. This means that the sum of $38,281.05 must be refunded to WorkCover.

As stated above, if you accept the Defendants’ joint final offer of $400,000.00 plus costs inclusive of the WorkCover refund you will receive approximately $288,000.00 clear to yourself after payment of the statutory refund to WorkCover of $38,281.05 and Medicare of approximately $1,8383.30 as well as our fees and costs.”

22. The appellant contended at trial that she had never seen that letter, or at least not until a later time. However, Exhibit 16 was tendered into evidence. It consisted of an email confirmation receipt,²⁷ which showed that the letter was emailed to the appellant at 1.35 pm on 14 October 2013. The appellant contended that the fact that she sent an email to the respondent on 16 October 2013 seeking the provision of details²⁸ should lead to the inference that the letter of 14 October had not, in fact, been sent.

23. The letter, Exhibit 6, was sent in apparent response to the appellant’s email on 14 October, at 12.37.²⁹ That, in turn, questioned what had been said in the respondent’s 12 September 2013 letter, where the net sum of $335,000 had been estimated on the basis of an offer of $400,000 clear of refunds. The relevant passage of that letter was quoted in Exhibit 6, which reinforced that the offer actually made was inclusive of refunds, unlike the estimate given in September before the compulsory conference. In those circumstances the email of 16 October 2013 does not suggest a lack of details overall, but a lack of the detail of the actual WorkCover amount.

24. It was plainly open to the learned trial judge to accept Exhibit 16 as proof that the letter was emailed to the appellant on that day. His Honour did so.³⁰

25. Once that is accepted the findings by the learned trial judge at [12] and [13] of the reasons below were also open. In particular, the letter was in explicit terms demonstrating that the joint final offer was inclusive of the WorkCover refund, and not exclusive of it. The letter contrasted the position with a previous letter dated 14 September 2013, which had proffered an example based on an offer to settle which was “clear of the WorkCover refund”. The letter of 14 October 2013 used that example to demonstrate that the inclusive offer meant that the WorkCover refund had to come out of the sum offered.³¹

Letter dated 12 September 2013

26. The appellant challenges the finding based on Exhibit 5,³² which was a letter dated 12 September 2013, sent about a month before the compulsory conference.³³ The finding was that the letter contained details of anticipated legal fees, and foreshadowed an anticipated contribution by the defendant occupier of $35,000 towards the appellant’s costs.³⁴

27. The appellant bases the contention on what was said in the joint final offer, where it referred to the appellant’s employer paying costs “As agreed or assessed”. The contention is misconceived. The finding at paragraph [9] of the reasons below was concerned with a letter which predated the conference and predated the joint final offer. In Exhibit 5 this was said:³⁵

“If the Defendants offered to settle your claim for $400,000.00 clear of the WorkCover refund of $25,766.45, you would receive approximately $335,000.00 in the hand after payment of fees and costs and the refund to Medicare of approximately $1,000.00. This is based on an assumption [the occupier] contributes $35,000.00 towards your costs.”

28. The respondent foreshadowed a contribution by the occupier defendant of $35,000. Paragraph [9] of the reasons below correctly recorded what was in Exhibit 5.

Letter dated 24 October 2013

29. The appellant seeks to challenge the finding in paragraph [14] of the reasons below insofar as it referred to the contents of a letter from the respondent to the appellant on 24 October 2013.³⁶ That part challenged is the statement:

“It duly sets out calculation of the amounts due to the plaintiff, including, explicitly, the refund to WorkCover of $38,281.05. It seems by that time the amount of costs payable by the occupier (which, as the offer provided, could be agreed or assessed) had been agreed at $35,000 …”

30. The challenge is two-fold. First, it is said that the WorkCover refund “was not actually a refund and should not have been deducted from my lump sum”. Secondly, it is said that there was no agreed amount of $35,000 for costs.

31. The challenge is misconceived. By Exhibit 6 (the letter of 14 October 2013 sent some 10 days earlier) the respondent had advised the appellant that the joint final offer was $400,000 “plus costs of $35,000.00”. That was repeated in the letter of advice on 24 October 2013, Exhibit 7. The inference that by that time the costs had been agreed at $35,000 was plainly open.

32. Further, Exhibit 7 expressly states that it was given in response to a request from the appellant to “provide you with details of how we have calculated that you would receive slightly in excess of $289,000 clear to yourself if you accept the Defendants’ joint offer of $400,000.00 plus costs of $35,000.00”.³⁷ The letter then laid out the costs incurred, and the refund to WorkCover. It then proceeded to show the calculation that added the $35,000 for costs to the offered sum of $400,000, and deducted the various statutory refunds including WorkCover. The consequent figure was $289,468.44.³⁸ Exhibit 7 went on to explain:³⁹

“You will be required to refund WorkCover the full amount of $38,281.05.

At the compulsory conference [Mr Chambers] advised you that you could expect to receive approximately $290,000.00 clear to you after payment of all statutory refunds and our fees and costs. He also advised you that a precise figure would be prepared, so that you would be properly informed, if you were minded to accept the Defendants’ joint offer.

We can confirm that, on the information presently available, if you accepted the Defendants’ joint offer you would receive $289,468.44 clear to you. This figure is based on an estimate that the refund to Medicare will be $1,838.30 and the assumption that the refund owing to Centrelink will be nil.”

33. The finding in paragraph [14], as to what Exhibit 7 said as to costs, was not only open, but correct. I shall deal later with the contention that the WorkCover refund was not actually a refund and should not have been deducted.

Letters dated 25 October 2013 and 29 October 2013

34. The appellant challenges the findings made in paragraphs [16] and [17] of the reasons below.⁴⁰ They concern Exhibit 8 (a letter from the respondent to the appellant on 25 October 2013),⁴¹ and a similar letter on 29 October 2013. In each case the letter referred to the joint final offer as being “$400,000.00, clear of the WorkCover refund of $38,281.05”. The learned trial judge made a finding that those references were in error. The central reason for that finding was that each letter nonetheless proceeded to set out the precise figure of $289,468.44 as being what the appellant would receive “after payment of all statutory refunds and our fees and costs”.⁴²

35. The appellant contended at trial that she had been told by Mr Chambers⁴³ that the offer at the settlement conference was $400,000 “clear”. The learned trial judge had referred to the actual terms of the joint final offer which made it clear that the $400,000 was inclusive of statutory refunds, the terms of the letter of 14 October 2013 which are directly contrary to the suggestion that Mr Chambers referred to the offer as being $400,000 “clear”, and the calculations in the letters of 24 October 2013, 25 October 2013 and 29 October 2013, all resulting in a final calculation inclusive of the refund. Based on that evidence it was open to his Honour to find that the reference in each of the letters of 25 October 2013 and 29 October 2013 to the offer being “clear of the WorkCover refund” was in error.

36. In relation to this challenge, as with some others, the appellant relies upon what was said in the affidavits of her parents, who were at the settlement conference. That reliance is misplaced. Neither of those deponents heard any of the offers. In fact, they make it plain that the offers to settle were negotiated in a separate room without the appellant or themselves being present. Each said that the offers were being verbally relayed by Mr Chambers, but neither of them referred to any offer “clear” of the WorkCover refund.

Letter dated 6 November 2013

37. The appellant challenges the findings made in paragraph [18] of the reasons below. There his Honour referred to a letter dated 6 November 2013 by which the respondent sent, inter alia, the original gross schedule of damages: see paragraph [18] above for a synopsis of that letter.

38. The appellant contended that “the ‘original gross schedule’ as mentioned here is not legal as it was not approved by myself”, and the schedule was not used at the compulsory settlement conference.⁴⁴ The essence of the complaint is that the appellant did not receive anything in writing at the settlement conference.

39. The challenge is misconceived. There was no finding by the learned trial judge that the appellant was given anything in writing at the conference. No such finding was called for because: (i) the evidence was that the negotiations at the conference were in a room separate from where the appellant was, and offers were conveyed by the respondent to the appellant verbally; (ii) no settlement was agreed at the conference;⁴⁵ and (iii) the defendants’ final joint offer was in writing and conveyed at the end of the conference.

40. The original gross schedule was not one that bound the appellant in any way, but was merely a historical document used to explain matters in the letter.

The release and discharge

41. The appellant challenges the findings made in paragraph [19] of the reasons below. In that respect she relied upon Exhibit 11 (the release and discharge executed on 13 November 2013),⁴⁶ as well as contentions made in paragraph 33 of her written submission made in the District Court.⁴⁷

42. The points made both in paragraph 33 of the submission in the District Court, and in paragraph 8 of her outline before this Court are:(a)the release and discharge is “illegal” because she was forced to sign it “against my will by means of extortion”; this was based upon the fact that she was told she had to sign the release and discharge or otherwise she would not receive the settlement funds;(b)the terms and conditions set out in the release and discharge were not according to the final written offer, so she refused to sign it;(c)she was threatened by her solicitors that if she did not sign then proceedings would have to be instituted at considerable cost and they would be a waste of money;(d)the release and discharge wrongly describe the parties involved, the fact that the parties had agreed to settle the claim, and the settlement sum; and(e)the release and discharge was unlawful because it contravened s 419(2) of the WCRA.

43. The appellant misunderstands the nature of the findings in paragraph [19] of the reasons below. All that the learned trial judge was stating in that paragraph was that it was common ground that the appellant had signed the discharge in the form tendered by WorkCover, but including all of the parties. So much is true, as the appellant concedes in her submissions. She has other arguments concerning the release and discharge.

44. Further, the balance of paragraph [19] merely recites parts of the release and discharge, and does so accurately.

45. As to the appellant’s contentions otherwise concerning the release and discharge, findings were made by the learned trial judge that:(a)the joint final offer was $400,000, plus $35,000 towards costs, that combined sum to be inclusive of the refunds to entities such as WorkCover;⁴⁸(b)the release and discharge accurately reflected the joint final offer;⁴⁹(c)the claim of having signed the release and discharge under duress did not form part of the pleaded case and the appellant’s contentions in that regard should be dismissed because: (i) even though she was concerned about signing the release and discharge, she accepted that the respondents’ letter of 25 October 2013 which set out the amounts she would be receiving, and (ii) it was sent before she advised that she would accept the joint offer;⁵⁰ and(d)to the extent that she contended that the release and discharge reflected something she did not agree with and had never agreed with, those contentions were at odds with the contemporaneous documents and should be rejected.⁵¹

46. Other contentions in relation to this point, reflected in the outlines both below and before this Court do not advance the matter any further.

47. The contention that the release and discharge contravenes s 419(2) of the WCRA is misconceived. In this respect the appellant refers to item 5 of the document, dealing with the releases and indemnities under that document.⁵² The provisions of s 419 are as follows:

“419 WorkCover not to indemnify WorkCover officers

(1)WorkCover must not -

(a)indemnify a person who is or has been a WorkCover officer against a liability incurred as an officer; or

(b)exempt a person who is or has been a WorkCover officer from a liability incurred as an officer.

(2)An instrument is void so far as it provides for WorkCover to do something that subsection (1) prohibits.”

48. Nothing in item 5 of the release and discharge document requires WorkCover to indemnify someone who has been or is a WorkCover officer, or exempts such a person from liability.

The Centrelink refund

49. The appellant challenges the finding that the Centrelink refund was $2,667.91,⁵³ contending that a WorkCover document dated 23 November 2013 (entitled by the appellant as Exhibit ACL6) “provides evidence that the amount of $2,667.91 was not meant to be deducted from my lump sum payment and that WorkCover had to repay the amount, not myself”.⁵⁴ In this respect she referred to s 1184 of the Social Security Act 1991 (Cth).

50. Exhibit ACL6 was tendered during the hearing of the appeal. It is the Centrelink recovery notice issued by Centrelink to WorkCover, requiring WorkCover to pay $2,667.91 to the Commonwealth. This was referred to (without specification of the amount) in Ex. 14, paragraph 4.2(b).

51. The appellant’s contentions were that: (i) this established that the $2,667.91 was to be paid by WorkCover, not her; and (ii) WorkCover had to pay it to the Commonwealth, not Centrelink.

52. The contentions do not take into account the way the Social Security Act applies. That Act makes provision for the recovery, from a lump sum compensation payment, of amounts paid by Centrelink.⁵⁵ Essentially, the scheme of the Act is that the person receiving a compensation payment (here, that is the appellant receiving the compensation for her injuries, agreed under the settlement) is liable to repay compensation such as Centrelink payments, but the Commonwealth can give notices compelling the compensation payer (here, WorkCover) to pay the sum directly to the Commonwealth (here, Centrelink). That compulsory payment discharges the liability of the appellant to repay the money.

53. The scheme provisions relevantly operate as follows:(a)s 1178 applies where a person receives a lump sum compensation payment and has also received a “compensation affected payment”; the Secretary of the Department may, by written notice to the person who received the payment, determine that that person is liable to pay to the Commonwealth the amount specified in that notice; (b)where a potential compensation payer becomes liable to pay compensation to a claimant, they must give notice to the Secretary of the Department within seven days after becoming liable;⁵⁶ the Secretary may then send a recovery notice to the compensation payer, notifying that the Secretary proposes to recover from the compensation payer the amount of the person’s liability to the Commonwealth for payment of the compensation recovery amount;⁵⁷(c)if a compensation payer receives such a notice, it is an offence to pay the amount of the compensation payment (i.e. the settlement sum) to the claimant,⁵⁸ unless the compensation payer has paid to the Commonwealth the amount specified in the notice;⁵⁹ similar provisions apply to an insurer;⁶⁰(d)payment by a compensation payer or its insurer to the Commonwealth discharges the liability of the compensation claimant to pay the amount to the Commonwealth;⁶¹ and(e)therefore, the liability is that of the compensation claimant, in this case the appellant, but Centrelink can extract the money from the compensation payer (WorkCover).

54. The appellant’s contentions on this aspect must be rejected.

s 110 of the Workers’ Compensation and Rehabilitation Act

55. The appellant challenges the reference to one of the issues raised by her at the trial, in paragraph [24] of the reasons below. That referred to a contention that s 110 of the WCRA meant that it was unlawful for the respondent to make any deductions from the settlement sum of $400,000. The challenge is confusing because the appellant initially submits⁶² that she does not and never has relied on s 110 as a basis to argue there should have been no deductions. However, her submissions at the trial did exactly that.⁶³ The submission at trial sought an order for a “proper and legal re-make or amendment” of the release and discharge, “for violating section 110”. Further, in the appellant’s outline before this Court, whilst she denied reliance on s 110 of the Act other parts of the outline address the meaning of s 110 and the way in which it was dealt in paragraphs [33]-[35] of the reasons below.

56. Because the appellant contends there is a legal error by the learned trial judge in the way his Honour determined the s 110 argument,⁶⁴ the issue must be dealt with.

57. Section 110 of the Act relevantly provides:

“110 Compensation entitlement cannot be relinquished, assigned or subject to execution

(1)A worker or another person can not relinquish an entitlement to compensation for an injury sustained by the worker or the person.

(2)An agreement made by the worker or the person purporting to relinquish the entitlement is of no force or effect.”

58. The appellant challenges the characterisation of s 110 of the WCRA as set out in paragraph [33] of the reasons below. The challenge is misconceived in that it does not give recognition to the difference between “compensation” and “access to damages” under the Act. Section 5 of the WCRA defines the Workers’ Compensation Scheme established by the WCRA itself. It relevantly provides:

“5 Workers’ compensation scheme

(1)This Act establishes a workers’ compensation scheme for Queensland–

(a)providing benefits for workers who sustain injury in their employment, for dependants if a worker’s injury results in the worker’s death, for persons other than workers, and for other benefits; and

(b)encouraging improved health and safety performance by employers.

(2)The main provisions of the scheme provide the following for injuries sustained by workers in their employment–

(a)compensation;

(b)regulation of access to damages;

(c)employer’s liability for compensation;

(d)employers’ obligation to be covered against liability for compensation and damages either under a WorkCover insurance policy or under a licence as a self-insurer;

(e)management of compensation claims by insurers …”

59. As the learned trial judge observed, s 5(2) recognised the difference between “compensation” and “access to damages”. Damages in that context means “damages for injury sustained by a worker in circumstances creating, independently of this Act, a legal liability in the worker’s employer to pay damages …”.⁶⁵ On the other hand, compensation is defined as meaning “amounts for a worker’s injury payable under chapters 3, 4 and 4A by an insurer to a worker …”.⁶⁶

60. The difference is made even more stark by s 46 of the WCRA which provides:

“46 Employer’s legal liability

(1)An employer is legally liable for compensation for injury sustained by a worker employed by the employer.

(2)This Act does not impose any legal liability on an employer for damages for injuries sustained by a worker employed by the employer, though chapter 5 regulates access to damages.”

61. Chapter 3 of the WCRA deals with compensation and includes s 110. The subject matter of s 110 is the entitlement to compensation. It is that which cannot be relinquished, assigned or made subject to execution. The entitlement to compensation is something provided for in s 108(1), which states that “Compensation is payable under this Act for an injury sustained by a worker”.

62. The WCRA makes it clear that there is a difference between compensation on the one hand and damages on the other.

63. Chapter 4 deals with injury management, making provision for matters such as liability for medical treatment and hospitalisation, and the expenses thereof. Chapter 4A is concerned with serious personal injuries. The object of chapter 4A is to ensure that a worker who sustains a serious personal injury receives necessary and reasonable treatment, care and support.⁶⁷ Various provisions within that chapter deal with an insurer’s liability for treatment, care and support payments, how that is assessed and how a worker’s entitlement is reviewed.

64. The learned trial judge was correct to hold that s 110 is not within a part of the WCRA that deals with damages, but rather a part that deals with compensation. The claim made by the appellant was for damages, and it is that claim which was settled and dealt with by the release and discharge. Nothing in that document was concerned with the appellant’s “entitlement to compensation”, and no part of it consisted of such an entitlement being relinquished, assigned or made subject to execution.

65. The appellant also contends that the error on the part of the learned trial judge in respect of paragraphs [33]-[35] of the reasons below is apparent by the application of s 419(2) and s 472 of the WCRA. Neither of those provisions is applicable. I have referred above to s 419(2) dealing with the release and discharge of WorkCover officers. Section 472 deals with authentication of documents, providing that a document made by WorkCover is sufficiently authenticated if it is signed in a number of ways. In this case there is no credible suggestion that the release and discharge was not a WorkCover issued document. The question of authentication did not arise.

The conduct of the settlement conference

66. The appellant contends that there is an error of law by the learned trial judge in his description of the practice applied at the settlement conference, namely where the appellant was not in the room where the negotiations with the other side took place. His Honour said it was standard procedure at such a mediation, describing the sequence as “normally such a mediation commences with a joint caucus involving all parties and representatives, followed by the parties separating, and the offers thereafter being conveyed between the groups by the mediator”.⁶⁸

67. The appellant submits that this was in some way a contravention of the law and the fact that she was not in the room when the negotiations took place “means I neither made to, or received from, the defendants myself personally, any offers that day.”⁶⁹ However, she acknowledges that the offers were verbally relayed to her by her solicitor. Thus, she was appraised of offers being made and had the chance to respond to them.

68. What the learned trial judge describes is, as he said, perfectly orthodox. There is nothing in this complaint.

The nature of the offer to settle

69. Central to the appellant’s contentions is the proposition that the joint written final offer was to pay the sum of $400,000, but this was exclusive of any statutory refunds. In other words, the $400,000 was clear of any statutory refund.

70. I have set out the evidence concerning the joint written final offer, and the correspondence thereafter: see paragraphs [5] to [19] above. In my view, that evidence made it clear that the sum offered, $400,000, was inclusive of statutory refunds; in other words, those refunds had to come out of that sum. The $400,000 was not clear of the refunds. True it is that in two letters the respondent used the words “clear of the WorkCover refund”, but in each case there was express advice that the sum to be received, should the offer be accepted, was one where the refunds had come out of the $400,000. The appellant could have been in no doubt about the true position. And, that was known at the time when she instructed that the offer be accepted, contrary to the strong advice of the respondent.

71. On that evidence it was open to the learned trial judge to conclude that the appellant’s claim was without legal or factual merit and should be dismissed.

Other contentions

72. I pause to note that there were a number of other contentions advanced by the appellant.⁷⁰ I have not seen the need to deal with them as they do not rise above those dealt with above.

73. However, there is one which I will briefly mention. In her written outlines in this Court the appellant asserts that (i) the respondent wrote the letters after 11 October 2013 “with the intention of getting away with unlawfully withholding my compensation”, and (ii) the respondent’s handling of her case was “unlawful”.⁷¹ There is no evidence to support those assertions.

Conclusion

74. There is no merit in the various grounds of appeal, and that the appeal should be dismissed.

75. I propose the following orders:

Appeal dismissed.

The appellant pay the respondent’s costs of and incidental to the appeal.

76. BODDICE J: I agree with Morrison JA.

77. RAFTER AJ: I agree with Morrison JA.