DISPOSITION
45 In the appellant's written submissions (paras 26 to 34), the appellant submits that, once an action includes a claim for "work injury damages" within the meaning of the statutory definition, s318 WIM applies to all parts of the proceedings, even those unrelated to "work injury damages". It is then submitted that since the statement of claim as originally filed, derived from that proposed in the pre-filing statement, was indubitably a claim for "work injury damages", it necessarily engaged s318(1) of WIM for all subsequent purposes. That, it was said, had its consequence that s318 remained engaged when it came to the amendment to the statement of claim which introduced the s53B/s82 TPA claim, it being within the definition of "work injury damages". Indeed as I understand the appellant's argument this consequence would follow even if that further claim was not within the definition of "work injury damages".
46 One consequence of the appellant's construction, if correct, would be that s318 would apply even if a plaintiff were to have had causes action wholly unrelated to workplace injury in a suit, merely because that suit began with causes of action that were related to workplace injury or included such causes of action. An example of this would be an action that sought both damages for negligence for an injury at work and unpaid wages due to a miscalculation of severance pay.
47 Another consequence of such an application of s318 WIM would be to discourage plaintiffs from seeking to amend existing proceedings so as to bring all actions against an employer in the one proceedings. Instead it would allow, even encourage, plaintiffs to bring two separate proceedings able to be heard concurrently with precisely the same result. This would be inconsistent with the laws' longstanding policy against multiplicity of actions. This lies at the heart of the power of amendment; see s64(2) Civil Procedure Act 2005 (NSW) which relevantly provides that all necessary amendments are to be made for the purpose of avoiding multiplicity of proceedings.
48 I agree with the Attorney General's submission that it is inherently unlikely that Parliament would have intended to undermine such a central policy goal in this way.
49 That policy and the reasons elaborated below support a construction of s318(1)(a) whereby the prohibition on the claimant of filing "a statement of claim that is materially different from the proposed statement of claim that formed part of the pre-filing statement", is to be interpreted as referring only to differences that are material to the claim for "work injury damages". This, as I explain below, directs attention to that statutory definition.
50 Support for this is to be found in the opening words of s318(1), namely, "[F]or the purposes of court proceedings on a claim for work injury damages" [emphasis added].
51 That requirement strongly militates against the notion that some count, extraneous to "work injury damages", as defined, could not permissibly be introduced by way of amendment to the earlier proposed statement of claim.
52 The question therefore becomes whether an action under s82 TPA for breach of s53B TPA is an action for damages in respect of "an injury to the worker caused by the negligence or other tort of the employer" within the definition of "work injury damages" quoted earlier, or otherwise caught by its concluding words.
53 Section 53B TPA is predicated upon prospective employment rather than employment that has already commenced. It thus refers to employment "that is to be, or may be, offered by the [employer] corporation or by another person". The prohibition in s53B is against engaging "in conduct that is liable to mislead persons seeking the employment as to the availability, nature, terms or conditions of, or any other matter relating to, the employment".
54 An examination of the actual amendments sought to be made to the statement of claim indicates that the claim is directed to alleged conduct on the part of the prospective employer as to "the nature terms and conditions of the employment". Its particularisation is based upon alleged lack of safety and lack of assistance to the respondent in so supervising a large number of high-rise buildings. The claim was based upon alleged representations, express or implied, as to the assistance and back-up the respondent would receive in that task and as to his failing to be informed that he would be working alone and on foot to carry out supervision of up to 15 high-rise buildings; see para 11 under the heading "Claim under the Trade Practices Act (Cth)" (Red, 32).
55 The subsequent damage claimed clearly arose when the respondent commenced employment. It is described in the alleged statement of claim as simply "damages pursuant to the Trade Practices Act (Cth)".
56 The nature of the injury that the respondent claims to have suffered is apparently psychiatric and arose from what is described in both amended and non-amended statement of claim at paragraph 6 as follows:
"6. By December 2000 the Plaintiff was inspecting 15 buildings, 10 nights in a row with 4 nights off from 6.00pm to 5.30 am without a break, unassisted and at significant speed which caused the Plaintiff to suffer from significant emotional stress and eventually the Plaintiff contracted major depression on or about May 2002 and, accordingly sustained substantial injury, loss and damage."
57 It is clear from the earlier paragraph 5 that the complaint was that "the Plaintiff was required to patrol an excessive amount of premises as a security officer … without proper breaks and assistance."
58 This poses a preliminary question of causation. Could injury arising from pre-existing conduct prior to the employment commencing, be said to be "caused" by the employer? I consider that to be an open question, notwithstanding the definition of "injury" in s4 WIM as meaning "a personal injury arising out of or in the course of employment". I shall however assume for present purposes that such an injury is capable of satisfying the causation requirement of the definition of "work injury damages". The ultimate question is therefore whether, on that assumption, damage by reason of a contravention of s53B is capable of being encompassed by the words "caused by the negligence or other tort of the employer".
59 I do not consider that the slight variation in wording in s52 TPA in its reference to "engage in conduct that is misleading or deceptive or is likely to mislead or deceive", as against s53B "engage in conduct that is liable to mislead", affects the basic proposition stated below. That proposition is that the concept of misleading conduct, in either section, does not have as an essential element any notion of failure to take reasonable care, so far as the defendant is concerned. Failure to take reasonable care has never been an element of the cause of action under s52 TPA as Gibbs CJ confirmed in Parkdale Custom-built Furniture Pty Ltd v Paxu Pty Ltd (1982) 149 CLR 191 at 197. Conduct will, and will only, be misleading or deceptive if it induces or is capable of inducing error. Here, that error alleged by the amendment pleaded and by reference s53B is "as to … the nature, terms or conditions of … the employment"; compare Parkdale Custom-built Furniture Pty Ltd v Paxu Pty Ltd (supra) at 198. That therefore a defendant may have acted honestly and reasonably and taken all reasonable care will not constitute a defence if there was conduct which induced or was capable of inducing error, subject to proving damage.
60 Given therefore that the s53B claim is not to be characterised as one in negligence, in order for the appellant to succeed it must show that the TPA claim here brought constituted a claim that fell within the words "or other tort". I put to one side whether the concluding words in the definition of "work injury damages" gives any wider ambit than the opening expression "negligence or other tort".
61 In that definition the expression "other tort" is used in contradistinction to the tort of negligence. That opens this category to encompass any common law tort such as trespass. It may likewise encompass civil liability, which may arise from breach of a statutory duty.
62 Here, however, the s53B statutory obligation does not bear the distinctive or common characteristics of tort law. I have already indicated that there is no requirement for lack of due care. Liability under both s52 and s53B is moreover essentially strict. There is no requirement that the defendant intend that the conduct be misleading or deceptive. And awards of damages under s52 for breach of s52 and equally s53B would not necessarily be constrained by principles relating to awards of damages in contract and tort.
63 While therefore s82 may draw upon the common law's recognition of the concept of remoteness (see, for example, Henville v Walker (2001) 206 CLR 459 at [136] per McHugh J) it should be remembered that s82 contains no stated limitation on the kinds of loss or damage that may be recovered under the section. The wide language of the section is compatible with the legislation's desire to broaden the scope of recovery, not to keep it strictly within the bounds of some comparison with the common law. Thus the court said in Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 at 525:
"It would not be right to conclude that the measure of damages recoverable under [s82(1)] necessarily coincides with the measure of damages applicable in an action for deceit or in an action for negligent misrepresentation. The measure of damages recoverable under s82(1) can only be ascertained after a thorough analysis of those provisions in Part IV and V of the Act for the contravention of which the statutory causes of action may be maintained."
64 Similarly, comparing s52 with damages for negligence, it is as yet unsettled as to whether there is any difference in outcome. In Boland v Yates Property Corp Pty Ltd (1999) 74 ALJR 209, a case involving alleged negligent advice by a barrister and a firm of solicitors which included a s52 claim, Gaudron J said:
"Moreover, the damages recoverable for breach of s52 of the Act are not necessarily co-extensive with those recoverable in negligence. In particular, damages are confined to actual loss and, thus, do not include punitive damages. Further, it is possible that they are not limited either by the foreseeability of consequential damage or remoteness. And significantly for present purposes, if s52 had applied in this case, there would be no occasion to consider whether the appellants were "immune from suit". The question could only arise if it were found that the appellants were negligent but that s52 did not apply to their conduct."
65 I conclude that the expression "other tort" does not encompass the statutory right to sue for damages, such as that found in s53B of TPA. I consider that expression is apt rather to cover any common law action other than in contract. That interpretation finds further support in the immediately preceding reference to "negligence" as implying a genus sharing the characteristics of a common law action.
66 Turning to the reference in the concluding part of the definition of "work injury damages" to damages recoverable "in an action for tort or breach of contract or in any other action" this to my mind is a reference to what preceded. It does not expand the cause of action from that of a common law tort to a statutory one despite the reference to "any other action". Rather the broad reference to "tort, breach of contract or any other action" reinforced the genus of a common law claim. The expression "any other action" might conceivably extend to some innominate tort, such as was suggested by Badgery-Parker J as not "entirely untenable", derived from an insurer's obligation to act in good faith; see Gibson v Parkes District Hospital and Another (1991) 26 NSWLR 9 at 36. But it is not necessary to define the precise limits of the expression beyond concluding that it does not extend to a TPA action.
67 Further support for this conclusion can be found in the definition of "damages" which appears earlier in s250(1) which is said to have "the same meaning as in Part 5 (Common Law Remedies) of the 1987 Act".
68 Finally, the reference in s250(2) by way of elaboration of the definition of "work injury damages" is to include "a person who is vicariously liable for the acts of the employer" and "a person for whose acts the employer is vicariously liable" [emphasis added]. This may have some significance. Let it be supposed that statutory claims could be brought within the definition of "work injury damages". Nonetheless any claim under s52 or s53B of TPA, though a statutory claim, is not based upon identification of particular "acts" so much as "conduct". Conduct may be misleading though there be no acts; for example an implied representation. Nor does the notion of vicarious liability fit readily in the statutory scheme of the Trade Practices Act.
69 I should now deal with the related ground of appeal; that there was no proper basis upon which, in the exercise of a discretion required to be judicially exercised, leave should have been given under s64 UCP.
70 First, it is clear that s318 placed no impediment in the grant of leave to amend, as leave was not required under that provision; see earlier.
71 Second, though there was no formal evidence explaining delay and the giving of late notice to amend on the first day of hearing, the primary judge, in what was a matter of practice and procedure with no statutory impediment, observed (Red, 37):
"There is no evidence put on to support the application but it is said from the bar table and I think accepted, that these are matters which were just overlooked, not recognised in the preparation of the plaintiff's claim until Mr Kelly of senior counsel and Mr McKenzie, counsel conferred with the plaintiff as recently as last Thursday."
72 Then having satisfied himself that there was an arguable case for the potential application of s53B, TPA, the primary judge was satisfied:
"there would appear to be no prejudice that flows to the defendant by granting the amendment. That there is no suggestion that the claim if it is one that can brought could be commenced by fresh proceedings started together in either this court or other courts. There is no need for the leave of the court for commencement of proceeding when the cause of action arise within six years of this date. Accordingly I am of the view that that should not be an impediment to the leave being granted to the plaintiff as sought."
73 Third, the primary judge required the plaintiff to pay the defendant's costs on an indemnity basis and then, by reference (as s58 UCP provides) to "the dictates of justice" concluded that:
"justice is done by granting the amendment to the plaintiff in relation to paragraph 11 of the proposed amended statement of claim, … and reserving to the defendant the right to make application to strike out these amendments which I have ordered should on the matter being fully particularised and the issues clarified between the parties, form a view that the six year time limit is one which is applicable."
74 To my mind there is no basis for appellate intervention in this exercise of discretion to allow the amendments, so permitting the true matters in dispute to be determined in the one proceeding.
75 Finally, I have had the advantage of reading in draft the judgment of the Chief Justice and agree with his further observations.