Starr v Greenfreight

1 The issue in this case is whether a worker who obtains a judgment for 'pain and suffering damages', as that expression is defined in s 134AB(37) of the Accident Compensation Act 1985 ('the AC Act'), is entitled to damages in the nature of interest in relation to that award.[1]

2 The plaintiff (who is the applicant in this Court) brought proceedings against his employer (the respondent) to recover common law damages pursuant to s 134AB of the AC Act. After an 8-day jury trial, the plaintiff obtained an award of pain and suffering damages in the sum of $245,000. The plaintiff then applied to the trial judge for an award of damages in the nature of interest. The judge rejected that application, holding that ss 134AB(34) and (35) of the AC Act precluded the award of any interest to the plaintiff.[2]

3 The plaintiff seeks leave to appeal and (if leave is granted) to appeal against the judge's refusal to award him damages in the nature of interest. For the reasons given below, we have concluded that the trial judge's decision was correct.

4 The issue in this case is one of statutory construction. That being so, it is necessary to start with the text of the relevant legislative provisions. Sections 134AB(34) and (35) provide:

(34) A court must not, in relation to an award of damages in accordance with this section, order the payment of interest, and no interest shall be payable, on any amount of damages, other than damages referable to loss actually suffered before the date of the award, in respect of the period from the date of the death of or injury to the person in respect of whom the award is made to date of the award.

(35) Except as provided by subsection (34), nothing in that subsection affects any other law relating to the payment of interest on any amount of damages, other than special damages.

5 But for ss 134AB(34) and (35) of the AC Act, the plaintiff's entitlement to interest would have been governed by s 60 of the Supreme Court Act 1986. Section 60(1) of the Supreme Court Act 1986 relevantly provides:

The court, on application in any proceeding for the recovery of debt or damages, must, unless good cause is shown to the contrary, give damages in the nature of interest at such rate not exceeding the rate for the time being fixed under section 2 of the Penalty Interest Rates Act 1983 as it thinks fit from the commencement of the proceeding to the date of the judgment over and above the debt or damages awarded.

6 Provisions relevantly identical to ss 134(AB)(34) and (35) were first enacted some 30 years ago in s 93 of the Transport Accident Act 1986 ('the TA Act').[3] Sections 93(15) and (16), as originally enacted, provided:

(15) A court must not, in relation to an award of damages in accordance with this section, order the payment of interest, and no interest shall be payable, on an amount of damages, other than damages referable to loss actually suffered before the date of the award, in respect of the period from the date of the death of or injury to the person in respect of whom the award is made to date of the award.

(16) Except as provided by subsection (15), nothing in that subsection affects any other law relating to the payment of interest on an amount of damages, other than special damages.

7 On 19 May 1998, s 93(15) of the TA Act was amended by s 14 of the Transport Accident (Amendment) Act 1998 to insert the word 'the' after the words 'made to'.

8 On 1 December 1992, the AC Act was amended by s 46 of the Accident Compensation (WorkCover) Act 1992 so as to insert s 135A into the AC Act.[4] Section 135A of the AC Act, like s 93 of the TA Act, contained two subsections (sub-ss (16) and (17)) dealing with interest. Those subsections provided:

(16) A court must not, in relation to an award of damages in accordance with this section, order the payment of interest, and no interest shall be payable, on any amount of damages, other than damages referable to loss actually suffered before the date of the award, in respect of the period from the date of the death of or injury to the person in respect of whom the award is made to date of the award.

(17) Except as provided by subsection (16), nothing in that subsection affects any other law relating to the payment of interest on any amount of damages, other than special damages.

9 On 12 November 1997, s 135C was inserted into the AC Act by s 49 of the Accident Compensation (Miscellaneous Amendment) Act 1997.[5] Like s 93 of the TA Act and s 135A of the AC Act before it, s 135C contains two subsections dealing with interest (subss (5) and (6)). Those subsections provide:

(5) A court must not, in relation to an award of damages in accordance with this section, order the payment of interest, and no interest is payable, on any amount of damages, other than damages referable to loss actually suffered before the date of the award, in respect of the period from the date of the death of the person in respect of whom the award is made, to the date of the award.

(6) Except as provided in subsection (5), nothing in that subsection affects any other law relating to the payment of interest on any amount of damages, other than special damages.

10 Finally, we should note for completeness, that two relevantly identical pairs of subsections have been enacted in respect of interest in ss 346(1) and (2) and ss 366(5) and (6) in the Workplace Injury Rehabilitation and Compensation Act 2013. It is not, however, necessary to set out the text of these sections.[6]

11 The two principal authorities that bear on the construction of ss 134AB(34) and (35) of the AC Act are the decision of Ashley J (as his Honour then was) in Eccles v Taylor[7] and the decision of the Court of Appeal in Williams v Oataway.[8] Eccles v Taylor concerned the construction of ss 93(15) and (16) of the TA Act as those sections were originally enacted.[9] Williams v Oataway concerned the construction of ss 135C(5) and (6) of the AC Act.

12 In construing s 93(15) of the TA Act, Ashley J noted that s 93(15) was one of four provisions in the TA Act which bore on the question of interest on damages in cases involving transport accidents. The other provisions were ss 93(16) and 175(1) and (2) of the TA Act. Sections 175(1) and (2) dealt with the question of interest in claims made in respect of transport accidents that occurred before 1 January 1987. Sections 175(1) and (2) provided:

(1) A court must not, in relation to an award of damages to which this Division applies, order the payment of interest, and no interest shall be payable, on an amount of damages, other than special damages in respect of the period from the date of the death of or injury to the person in respect of whom the award is made to the date of the award.

(2) Except as provided by this section, nothing in this section affects any other law relating to the payment of interest on an amount of damages, other than special damages.

13 After undertaking a detailed analysis of ss 93(15) and (16) and 175(1) and (2) of the TA Act, Ashley J concluded that s 93(15) prohibited a court from ordering the payment of interest on damages for pain and suffering and loss of enjoyment of life insofar as such damages pertained to the period which concluded at the time of the making of the award of those damages. By the operation of s 60 of the Supreme Court Act 1986, this meant that no interest was payable, at the time of the award, on any amount awarded in respect of pain and suffering and loss of enjoyment of life.

14 In Eccles v Taylor, Ashley J advanced three reasons for his conclusion that interest was not payable on any amount awarded in respect of pain and suffering and loss of enjoyment of life. First, Ashley J relied upon the fact that s 93(15) commenced with a prohibition against any order for interest, before then providing 'some relief from the harshness of that prohibition'. As his Honour noted, the relief provided commenced with the words 'other than'. As his Honour said, those words do not really imply a giving back of all that had been taken.[10] In rejecting the construction of s 93(15) contended for by the plaintiff in Eccles v Taylor, Ashley J said that it seemed to him to be extremely improbable that s 93(15) should give back all that had been taken.[11]

15 Secondly, Ashley J relied upon the use of the words 'loss actually suffered' in s 93(15). His Honour noted that the use of the adverb 'actually' was 'less obviously appropriate to damages for pain and suffering than it was as a reference to 'monetary loss actually suffered and expenditure actually incurred'.[12]

16 The third strand of the reasoning in Eccles v Taylor was expressed by Ashley J in the following terms:

I should go back to s 93(16), and the mirror or counterpart argument advanced by [counsel for the defendant]. ... I continue to have a real problem in understanding the precise operation of the subsection. The same may be said of s 175(2). At least, however, I think it is clear that there is a correspondence of concepts between s 175(1), (2). It is either in the words 'an amount of damages, other than special damages'; or in the words 'other than special damages'. In the case of s 93(15), (16) the correspondence is not so obvious, but it seems to me to be there. It lies either in 'on an amount of damages, other than damages referable to loss actually suffered before the date of the award' in s 93(15) and the passage 'on an amount of damages, other than special damages' in s 93(16); or between, in the case of the two subsections, the words introduced by 'other than'. In my opinion, whichever be the correspondence, in the case of s 93(15), (16), [the defendant's counsel's] submission is advanced. I find it very difficult to discern a reason, or an effect achieved by the damages introduced by the words 'other than' in s 93(15), (16) being damages - wholly or partly - of different types.[13]

17 In Williams v Oataway, the Court of Appeal was concerned with the interpretation of s 135C(5) of the AC Act. Section 135C of the AC Act governed dependants' claims for damages in respect of the death of a worker.[14] In Williams v Oataway, Batt JA[15] performed a detailed comparison between ss 93(15) and (16) of the TA Act and ss 135C(5) and (6) of the AC Act. His Honour set out the various differences in language between the two sets of provisions.[16] Additionally, Batt JA observed other differences between the various sets of provisions that had by that time been enacted, and to which we have already referred.[17] His Honour described the relevant sets of provisions as 'differing ... only immaterially' save for the necessary inclusion in some provisions of words pertaining to the circumstances of the application of those provisions.[18] That said, we note that, while there are a number of differences between s 93(15) of the TA Act (as originally enacted) and s 135C(5) of the AC Act, s 134AB(34) of the AC Act is identical to the version of s 93(15) of the TA Act that was the subject of Ashley J's analysis in Eccles v Taylor (including missing the word 'the' that was subsequently inserted into s 93(15) of the TA Act in 1998). For completeness, however, we should observe that the word 'an' in s 93(16) of the TA Act has been replaced with the word 'any' in s 134AB(35) of the AC Act.

18 Except for one point, the Court of Appeal in Williams v Oataway agreed with Ashley J's analysis in Eccles v Taylor. The point upon which the court in Williams v Oataway differed from the analysis in Eccles v Taylor concerned the question of the period of the prohibition upon the award of interest. That is, whether the period of the prohibition was from the date of death or injury or the date upon which the relevant proceeding was commenced.[19] The commencement date of the period of prohibition contained in s 134AB(34) of the AC Act is not an issue in the present case. Other than in respect of this point, the Court of Appeal in Williams v Oataway endorsed the reasoning of Ashley J in Eccles v Taylor.

19 In his ruling, the primary judge summarised, in careful detail, the decision of Ashley J in Eccles v Taylor.[20] Consistent with the views that we have already expressed, his Honour considered that the decision of this Court in Williams v Oataway did not disapprove or qualify the authority of Eccles for the proposition that s 93(15) of the AC Act precludes the award of interest on pain and suffering damages.[21] In those circumstances his Honour concluded that he should follow the decision in Eccles v Taylor. His Honour noted that that decision had been followed in a number of decisions over the previous 20 years. Further, since Eccles v Taylor was decided in 1995, the provision, and its companion (s 175) had been re-enacted on several occasions. Thus Parliament had had a number opportunities to reject the position created by the decision in Eccles, by which plaintiffs were not entitled to an award of interest on pain and suffering damages, but Parliament had declined to do so. Accordingly his Honour considered that Parliament should be presumed to have adopted that construction.[22]

20 The application for leave to appeal contains one ground, namely that the primary judge misconstrued the effect and meaning of s 134AB(34) of the Accident Compensation Act 1985. In substance, the submissions made in support of that ground are to the effect that the reasoning of Ashley J in Eccles v Taylor should not be followed.

21 In Eccles v Taylor, Ashley J conducted a comprehensive and detailed analysis of ss 93(15), 93(16), 175(1) and 175(2) of the TA Act. His Honour's analysis included consideration of s 79A of the Supreme Court Act 1958 and s 60 of the Supreme Court Act 1986, and also dealt with how those sections interacted with the relevant sections in the TA Act. As might be expected, as part of this analysis, Ashley J also considered and dealt with relevant authority including the judgment of Fullagar J in Paff v Speed[23] and the judgment of Crockett J in Sticca v Jouvelet.[24] On its face, the judgment provides a comprehensive and persuasive analysis and answer to an important question of statutory construction.

22 Similarly, the analysis of the Court of Appeal in Williams v Oataway is comprehensive and detailed, including, as it does, considerable detail concerning the relevant legislative history and a detailed analysis of the text of the various statutory provisions considered in it. In Williams v Oataway, the relevant reasoning in Eccles v Taylor was approved.

23 The applicant submitted that Eccles v Taylor was wrongly decided and/or should be reconsidered by this Court. In support of that submission, the applicant noted Ashley J's 'considerable reservations' about his conclusions, given what his Honour referred to as the 'unsatisfactory and confusing' structure of the four relevant provisions in the TA Act 'and their verbiage'.[25] Additionally, the applicant contended that the Court of Appeal, in Williams v Oataway, had been specifically critical of some of the reasoning in Eccles v Taylor, so as to justify a reconsideration of that decision.

24 The short answer to these contentions is that the relevant sections of the reasoning in Eccles v Taylor were endorsed in Williams v Oataway. The difference of

24 opinion expressed by the Court in Williams v Oataway related, as we have said, to the commencement of the period of the prohibition referred to in s 93(15). The difference of opinion between the two courts on this issue does not undermine in any relevant way the reasoning in Eccles v Taylor.

25 Next, the applicant submitted that Eccles v Taylor proceeded on a misconception about the date upon which loss is suffered when a plaintiff sustains personal injury. The applicant submitted that the judgments of the High Court in Ruby v Marsh[26] and the decision of the Full Court in Wright v West Australian Trustee and Agency Co Ltd[27] were authority for the proposition that s 60 of the Supreme Court Act 1986 required the interest referred to in that section to be calculated on the whole of an award of damages for personal injury, on the basis that no part of such damages includes 'any amount for ... compensation for loss or damage to be incurred or suffered after the date of the award'.[28]

26 Two points may be made in response to these submissions. First, Ruby v Marsh and Wright were dependants' claims brought pursuant to pt III of the Wrongs Act 1958. Such observations as were made in the judgments in those cases concerning interest to be awarded in respect of personal injury damages were obiter. Moreover, in Ruby v Marsh there was no majority for the proposition now advanced by the applicant. In fact, there was a majority for the contrary proposition. The existence of this majority calls into question the correctness of the obiter in the Full Court's decision in Wright which is relied upon by the applicant.[29]

27 Secondly, the applicant's submissions overlook the way in which damages in personal injury actions have been calculated and assessed in this State for decades, both before and after Ruby v Marsh and Wright. In personal injury claims, so far as pecuniary losses are concerned, past losses are identified and calculated up to the time of trial, and future losses are calculated and assessed by reference to discount rates to be applied in respect of the relevant periods of time in the future.[30] Indeed, as was said in Smith v Gellibrand Support Services Inc,[31] this method of calculating and assessing pecuniary losses in personal injury cases appears to have been implicitly recognised in the definition of 'pecuniary loss damages' in s 134AB(37) of the AC Act and s 93(17) of the TA Act.[32]

28 Moreover, to accept the applicant's submissions would involve holding that Williams v Oataway was wrongly decided. This we would only do if we were satisfied that it was plainly wrong. With respect, we are not so satisfied. Williams v Oataway involved a conventional application of accepted principles to the facts set out therein.

29 In oral argument, senior counsel for the applicant submitted that the analysis in Eccles v Taylor did not take sufficient account of the difference in language between s 175(1) of the TA Act and s 93(15). Specifically, it was submitted that the phrase 'loss actually suffered' in s 93(15), which is also present in s 134AB(34) of the AC Act, must refer to something different from the phrase 'special damages' in s 175(1). Moreover, it was submitted that if Parliament had intended s 93(15) (and by later extension s 134AB(34)) to exclude any entitlement to damages in the nature of interest in respect of pain and suffering damages, then, rather than using the words 'other than damages referrable to loss actually suffered' in s 93(15), it could have used the words 'other than pecuniary loss damages' or 'other than loss of earnings' ('loss of earnings' being one of the constituent elements of the defined expression 'pecuniary loss damages').

30 There is force in these submissions. They highlight the difficult question of statutory construction posed by s 93(15) of the TA Act as found by Ashley J, and the corresponding difficulty caused by the adoption of the same words in s 134AB(34) of the AC Act. However, the applicant's submissions do not go so far to show that Ashley J's analysis was plainly wrong or manifestly erroneous.[33] This is a matter of significance for reasons we will come to below.

31 Next, it was submitted by the applicant that there was a logical reason for Parliament to have adopted a more restrictive approach to interest in s 175 of the TA Act, than it adopted in s 93(15) of that Act. The applicant noted that s 93 of the TA Act applied to serious injuries and required those plaintiffs to go through gateways that would, in the ordinary course, delay their eventual recovery of damages. It was submitted that there were good reasons for having a less restrictive approach to interest with respect to seriously injured plaintiffs whose claims would take longer to be resolved than for all plaintiffs who were able to sue for common law damages in respect of transport accidents that occurred before 1 January 1987.

32 In our view, this analysis is somewhat speculative. Moreover, it is to be remembered that the cohort of plaintiffs involved in transport accidents before 1 January 1987 included those who were as seriously injured as those now permitted to take proceedings under s 93 of the TA Act. Further, it is not at all clear how one might conclude that an individual plaintiff's claim would be delayed for any and what period as a result of having to comply with the gateway provisions contained in s 93 of the TA Act.

33 The language in s 93(15) of the TA Act, now repeated in s 134AB(34) of the AC Act, has been well understood for more than 20 years. In our view, there is no reason to doubt the correctness of Eccles v Taylor upon this issue. The language has been re-enacted five times since Eccles v Taylor.[34] Whatever might once have been capable of being said about the construction of s 93(15) of the TA Act and its analogues, Parliament must now be taken to have intended for the words in

33 s 134AB(34) of the AC Act to bear the same meaning as the relevantly identical words in s 93(15) of the TA Act, in accordance with the ratio in Eccles v Taylor.

34 As has been said before, '[t]here is abundant authority for the proposition that where Parliament repeats words which have been judicially construed, it is taken to have intended the words to bear the meaning already judicially attributed to them, although the validity of that proposition has been questioned'.[35] Moreover, as was submitted by the respondent, it is relevant that since Eccles v Taylor was decided Parliament has not sought in any of the frequent amending Acts to amend s 93(15) of the TA Act or its cognate provisions in the AC Act so as to alter their effect as judicially construed in Eccles v Taylor (and later followed in Williams v Oataway).[36] That is not to say that this Court should perpetuate a plainly erroneous construction of a statutory provision.[37] A plainly erroneous construction of a statutory provision cannot be supported.[38]

35 The question before this Court in the present application is the proper construction of s 134AB(34) of the AC Act, having regard to its context and legislative history - that context and history including the fact that s 134AB(34) re-enacted the language of s 93(15) of the TA Act and s 135A(16) of the AC Act after that language had been judicially construed in Eccles v Taylor. As we have said, while the matter is capable of debate, we see no reason to doubt the correctness of the analysis or the correctness of the conclusion reached by Ashley J in Eccles v Taylor. Given the legislative history to which we have referred, Parliament must now be taken to have intended that s 134AB(34) of the AC Act operate in the same way that s 93(15) of the TA Act has been held to operate for more than 20 years.[39]

36 While there would be a grant of leave to appeal, for the reasons given above, the appeal must be dismissed.

[1] The expression 'pain and suffering damages' is defined in s 134AB(37) of the AC Act to mean 'damages for pain and suffering, loss of amenities of life or loss of enjoyment of life'.

[2] Starr v Greenfreight (Services) Pty Ltd [2015] VSC 759 ('Reasons').

[3] Section 93 of the TA Act governs claims for damages in respect of transport accidents that occur on or after 1 January 1987.

[4] Section 135A of the AC Act governed claims for damages brought in respect of injuries arising out of or in the course of, or due to the nature of, employment on or after 1 December 1992 and before 12 November 1997.

[5] Section 135C of the AC Act governed dependants' claims for damages in respect of the death of a worker arising otherwise than out of a transport accident.

[6] The Workplace Injury Rehabilitation Compensation Act 2013 applies in respect of injuries suffered in the course of, or due to the nature of, employment on or after 1 July 2014. Section 346 applies to injury claims, and s 366 applies to dependants' claims.

[7] [1995] VicRp 68; [1995] 2 VR 482 ('Eccles v Taylor').

[8] [2005] VSCA 137; (2005) 11 VR 529 ('Williams v Oataway').

[9] That is, the version of ss 93(15) and (16) before the amendment made in 1998 to add the word 'the' in sub-s (15).

[10] Eccles v Taylor [1995] VicRp 68; [1995] 2 VR 482, 491.

[12] Cf Paff v Speed [1961] HCA 14; (1961) 105 CLR 549, 558 (Fullagar J).

[13] Eccles v Taylor [1995] VicRp 68; [1995] 2 VR 482, 492.

[14] Where such claims did not arise out of a transport accident.

[15] With whom Buchanan and Vincent JJA agreed.

[16] Williams v Oataway [2005] VSCA 137; (2005) 11 VR 529, 533 [3].

[23] [1961] HCA 14; (1961) 105 CLR 549.

[24] [1988] VicRp 81; [1988] VR 899.

[25] Eccles v Taylor [1995] VicRp 68; [1995] 2 VR 482, 485.

[26] [1975] HCA 32; (1975) 132 CLR 642 ('Ruby v Marsh').

[27] [1987] VicRp 63; [1987] VR 771 ('Wright').

[28] Cf s 60(3)(b) of the Supreme Court Act 1986.

[29] See further, Atlas Tiles Ltd v Briers [1978] HCA 37; (1978) 144 CLR 202; State Government Insurance Office (Queensland) v Biemann [1983] HCA 34; (1983) 154 CLR 539, 544-555 (Gibbs CJ, Mason, Deane and Dawson JJ).

[30] See generally, Husher v Husher [1999] HCA 47; (1999) 197 CLR 138, 143 [7]; Smith v Gellibrand Support Services Inc [2013] VSCA 368; (2013) 42 VR 197, 216-217 [74]-[75].

[31] [2013] VSCA 368; (2013) 42 VR 197 ('Smith v Gellibrand').

[32] Smith v Gellibrand [2013] VSCA 368; (2013) 42 VR 197, 216 [74].

[33] Cf Babaniaris v Lutony Fashions Pty Ltd [1987] HCA 19; (1987) 163 CLR 1, 13-14 (Mason J) ('Babaniaris'). See further, Babaniaris at 22-23 (Wilson and Dawson JJ), 29-30 (Brennan and Deane JJ).

[34] Section 135A(16) of the AC Act, s 135C(5) of the AC Act, s 134AB(34) of the AC Act, s 346(1) of the Workplace Injury Rehabilitation and Compensation Act 2013 and s 366(5) of that same Act.

[35] Re Alcan Australia Ltd; Ex parte Federation of Industrial Manufacturing and Engineering Employees [1994] HCA 34; (1994) 181 CLR 96, 106 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ). See also Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher [2015] HCA 10; (2015) 254 CLR 489, 502 [15] (French CJ, Hayne, Kiefel, Gageler and Keane JJ).

[36] Cf Thompson v Judge Byrne [1999] HCA 16; (1999) 196 CLR 141, 157 [40] (Gleeson CJ, Gummow, Kirby and Callinan JJ), 160 [53] (McHugh J).

[37] Cf Babaniaris [1987] HCA 19; (1987) 163 CLR 1, 13-14 (Mason J), 22-23 (Wilson and Dawson JJ), 29-30 (Brennan and Deane JJ); John v Commissioner of Taxation [1989] HCA 5; (1989) 166 CLR 417, 439-441 (Mason CJ, Wilson, Dawson, Toohey and Gaudron JJ), 452 (Brennan J).

[39] Ibid. As to examples of recorded cases that have proceeded upon an apparent acceptance of the correctness of Eccles v Taylor, see _O'Connell v Melbourne Excavations and Demolitions Pty Ltd (_Unreported, Supreme Court of Victoria, Ashley J, 7 March 1997); McLennan v Radford [2003] VSCA 114; (2003) 7 VR 1; Casey City Council v Kohn [2006] VSCA 82 [15]; Papadopoulos v MC Labour Hire Services Pty Ltd [No 3] [2009] VSC 183 (also, as a matter of experience, it has been applied in countless cases as the accepted basis for the calculation of interest).