Transport Accident Commission v Lanson & Anor [2001] VSCA 84

Transport Accident Commission v Lanson & Anor [2001] VSCA 84 - VSCA 2001 case summary — Zoe

[15]

Indeed the amendments made to s.104 by Act No.34 of 1998 demonstrate the extensive amendments which were needed to the section as it stood in 1994 to extend the TAC's indemnity entitlements to "death benefits" as well as "injury benefits". However, by the time that these amendments took effect, namely 19 May 1998, it was some three years after the death of Mrs. Smith; and a death benefit under s.57 had already been paid as had the recurring benefits under s.58. It was not suggested on this appeal that such benefits as had been paid before the amendments could be recovered by the TAC pursuant to the amended section. What is in issue is whether the entitlement to indemnity, as now evinced by s.104, covers such payments to dependants as have been made since the date when the 1998 amendments came into force. The appellant contends that it does, notwithstanding that the transport accident and the death occurred well before such date. It is said that the section operates prospectively from that date and thus extends the entitlement to indemnity to each payment to a dependant made after that date. Accordingly, so it is submitted, no presumption against retrospectivity applies. Reliance was placed upon such cases as Tuckwood v. Rotherham Corporation[1] and Borg Warner (Aust.) Ltd. v. Zupan[2]. The respondents argue, to the contrary of the submissions made on behalf of the appellants, that their liability to indemnify the appellant was fixed as at the date of death and that such liability cannot be enlarged by amendments made to the Act some three years later. They contend that the proper construction of the words in the amending act - namely "If an injury or death arising out of a transport accident ..." is that they refer, at least so far as presently relevant, to deaths arising out of transport accidents which occur after the date of the amendments. Otherwise words such as "whenever occurring" would have to be implied. This construction, they contend, is supported by the fact that the section conditions the appellant's entitlement to indemnity to "such proportion of the amount of the liability of the [TAC] to make payments under this Act in respect of ... the death ..." and that such liability is established at the time when death occurs. The entitlement to indemnity, so the respondents submit, arises not from the making of payments but rather from the establishment of the liability to make them. In any event, they submit, there is nothing in the words of the amending section which clearly evinces an intention that it is intended to have a retrospective operation; a proposition which, they say, is supported by the appellant's concession that it cannot recover payments made between the date of death and the date of the amendments.

[41]

Mr. Uren submitted that we should read s.104, as amended in 1994, as if death benefits were included within the indemnity afforded to the Commission because inter alia (he said) s.104 as amended should be read and construed as complementary to s.93 as amended, in particular sub-s.(11A). More fully, the submission was that the reduction in the amount of damages achieved by s.93(11A) should be reflected (as more obviously was the reduction achieved by s.93(11)) in a corresponding increase in the indemnity afforded to the Commission by s.104, thereby requiring that the word "injury" be taken to include death. A number of things may be said of that submission. First, the submission is, in effect, that in s.104(1) the word "injury" should be taken to mean death or injury and, if that was intended, it is difficult to see why Parliament did not say so expressly, when elsewhere the two terms are used when both are intended. That is simply reinforced by the contrast afforded by Parliament's dealing in s.93 with injury and death very plainly in two discrete subsections, while failing in s.104 to mention death at all in either sub-s.(1) or sub-s.(2): the difference between s.93(11A) and s.104(1) is all too evident. Secondly, if it was intended that ss.93 and 104 should correspond in the way suggested by counsel's argument, one would have expected that both sections would be called into play in relation to the same transport accident; yet that was not the provision made by Parliament. In the amending Act of 1994, which received the Royal Assent on 29 November 1994, Parliament included s.11 as an express transition provision, by virtue of which the amendments to s.93 (which were effected by s.10 in Part 2 of the 1994 Act) were to operate only in relation to a transport accident occurring on or after 1 January 1995. No such express provision was made in relation to the amendments to s.104, amendments which were effected by s.42 in Part 3 of the 1994 Act to which s.11 of the Act had no application. (That that was so was confirmed by this Court in Corangamite and that aspect of the case was not called into question on this appeal.)

[57]

There is much force, I think, in Mr. Elliott's argument that the liability of the Commission which is mentioned in s.104(1) is a liability which arose, in a case like this, upon the death of the victim of the transport accident. Section 104(1) does indeed relate the indemnity required directly to "the amount of the liability of the Commission to make payments under this Act in respect of the injury or death", a liability which is not unlike that which historically was imposed by workers' compensation legislation (now the Accident Compensation Act 1985) upon the employer (and now the Victorian WorkCover Authority) to pay compensation when a worker was injured or killed in the workplace. In the latter context the courts have had to consider many times what rates of compensation applied, usually after the rates were amended but without the amending statute's providing sufficient guidance about the application of the altered rates. Traditionally, the liability of the employer to pay compensation to a worker for the consequences of compensable injury was said to arise upon the occurrence of the injury, thereby attracting the rates of compensation then fixed. See generally Clement v. D. Davis & Sons Ltd.[28]; Kraljevich v. Lake View and Star Ltd.[29]; Staska v. General Motors Holden's Pty. Ltd.[30] (P.C.) affirming the decision of the High Court[31]; Stevenson v. Buchanan & Brock Pty. Ltd.[32]; Burls v. A.A. Mitchell Pty. Ltd.[33]; Howe v. Simmons Bedding Co. Pty. Ltd.[34]; A.C.C. v. S.I.O.[35]; and TNT Australia Pty. Ltd. v. Horne[36]. Departures from the norm have figured from time to time in the reported cases, where the statute itself has been considered to require it. For example, in Fisher v. Hebburn Ltd.[37] liability was held to arise in the employer only upon incapacity developing from a disease of gradual onset; in Geraldton Building Co. Pty. Ltd. v. May[38], only upon a particular election being made under the statute; and, perhaps more significantly for present purposes, in Ogden Industries Pty. Ltd. v. Lucas[39], only upon death when an injured worker died.

[78]

Perhaps I should add this in case it is not already clear. In my opinion Mr. Uren's argument gained little, if anything from his emphasising the conditional nature of the Commission's right to an indemnity under s.104. True it is that the indemnity cannot be enforced before payment is made by the Commission under the Act: s.104(1) expressly stipulates that compensation must first have been paid[56]. Perhaps that does little more than deny any right to equitable relief against the prospective indemnifier before the payment of compensation (as to which see paragraph [37] above) but that need not detain us; for it is not the Commission's right to an indemnity which is ultimately determinative. Rather it is the effect on the indemnifier's liability, as it stood up until 19 May 1998, of the extension of that liability by the amendments which came into force on that day. The liability of the tortfeasor until 19 May 1998 lay, as I have said, in the liability at common law and under the Wrongs Act to pay damages to those injured in the accident and the dependants of Mrs. Smith; it lay also in such liability to the Commission as then existed under s.104. Even if that liability under s.104 was still conditional by 19 May 1998 (which seems to me improbable), it is now established that a right may be sufficiently recognised to warrant protection against legislative change, though the right be still "inchoate or contingent": Colonial Sugar Refining Co. Ltd. v. Irving[57], Free Lanka Insurance Co. v. Ranasinghe[58], Esber v. Commonwealth of Australia[59]; and what is true of a right, must surely be so also in respect of its correlative, the liability. I do not pursue it; for it seems to me that, when the scheme is regarded as a whole, the conclusion cannot be gainsaid that the liability of the respondents flowing from this transport accident, as measured up until 19 May 1998, must have been significantly increased if s.104, as amended in 1998, were now allowed to operate notwithstanding that the relevant death occurred in 1995.

[79]

The discussion thus far has assumed the absence of any contrary intention, that is, the absence of any clear indication by Parliament that s.104(1) should operate in relation to death occurring before 19 May 1998. As already mentioned, the common law presumption requires that such an intention be clearly evinced, whereas s.14(2) refers to such a contrary intention appearing "expressly"[60]. Either way, no submission was put to us that such an intention could be discerned in the legislation in this case. What was argued was that, if this Court should be of opinion that the Commission was seeking to apply s.104 retrospectively because Mrs. Smith's death occurred before 19 May 1998, the presumption against retrospective operation should be regarded as weaker because, on analysis, it was only just and proper that s.104(1), in extending the right of indemnity to death benefits, should apply in respect of deaths whenever occurring. Again reliance was placed upon the 1994 amendment to s.93 to include the new sub-s.(11A), which reduced the damages recoverable against a tortfeasor under Lord Campbell's Act by the amount of any payments made by the Commission for death benefits; in the absence of any corresponding extension to the indemnity afforded to the Commission under s.104, that was said to have produced a gap in the tortfeasor's liability which was inexplicable and unjustified, deserving to be remedied as an anomaly. Hence, it was suggested, the 1998 amendment to s.104 - and Mr. Uren relied upon what was said by Adam, J. in Doro[61] to the effect that, "where to give retrospective operation to a statute ... is required to rectify a manifest injustice", the presumption against such operation must be the weaker. For reasons already given, I am not persuaded: it seems to me that the amendment to s.93 was made quite deliberately in 1994, whatever the reason behind it, and it is only speculation to suppose that in 1998 Parliament saw the 1994 amendment as opening a "gap" which deserved to be filled. Nor, it must be said, was the filling of the gap, if such it was, "required to rectify a manifest injustice". What Adam, J. said in that regard has no application here.

[91]

It is perhaps curious that in Corangamite counsel did not seek to sustain the decision at first instance by reference to common law principles of statutory construction or s.14(2) of the Interpretation of Legislation Act. Perhaps - and here I speculate - counsel for the Shire saw the scheme of the Act both before and after the 1994 amendments as standing in the way of any such argument over payments by the Commission under s.49 in particular. It will be recalled (from what I have said in paragraph [25]) that before the 1994 amendments s.93(11) required an order (upon a successful action being brought by the victim for damages) for payment to the Commission out of the damages otherwise recovered by the plaintiff of the amount of any payments made by the Commission under, inter alia, s.49. That scheme was changed by the 1994 amendments: instead of an order for payment to the Commission out of the damages otherwise recovered, those damages were to be reduced by the amount of any payments made by the Commission under, inter alia, s.49 and under s.104(1) the tortfeasor was to indemnify the Commission for the payments so made. Perhaps counsel for the Shire saw the 1994 amendments as amounting to no more than a shift in form, from an order for payment under s.93(11) in favour of the Commission to an obligation to indemnify the Commission directly under s.104(1). If so, that would certainly be a point of distinction here, where the tortfeasor was under no liability after the 1994 amendments for death benefits paid by the Commission, even when damages were recovered by an action "in accordance with" s.93; it will be recalled that that was the result of adding s.93(11A) (which effectively diminished the liability of the tortfeasor in the case of a successful action for damages under s.93) without there being at the same time any corresponding increase in the wrongdoer's liability to indemnify the Commission under s.104 - the increase that was effected only by the 1998 amendments.

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