Transport Accident Commission v Sweedman [2004] VSCA 162

Transport Accident Commission v Sweedman [2004] VSCA 162 - VSCA 2004 case summary — Zoe

[37]

"(1) On 20 July 1996 a motor vehicle driven by Mrs Helen Sweedman was involved in a collision on public roads with a motor vehicle driven by Mr John Sutton and in which Mrs Helen Sutton was a passenger ('the Accident'). (2) The Accident occurred in the town of Pallamallawa, in the Municipality of Moree, in the State of New South Wales. (3) Both John Sutton and Helen Sutton suffered injury as a result of the accident. (4) In respect of those injuries, the Transport Accident Commission ('the Commission') has made payments under the Transport Accident Act 1986 ('the Act') to, or on behalf of, both John Sutton and Helen Sutton. (5) At the time of the accident: (a) John Sutton was driving a motor vehicle registered in Victoria, registration number BDS-393; (b) Both John Sutton and Helen Sutton resided in Victoria. (6) The motor vehicle which Mrs Sweedman was driving at the time of the accident was a 1987 Ford Fairlane sedan, registered in New South Wales (registration number QIG-393). This vehicle was, at all material times, owned by and registered to Mrs Sweedman's son, Mr Everett Sweedman. Prior to the accident it had normally been garaged at Mrs Sweedman's residence at 6 Railway Parade, Gravesend. At no time prior to the accident had the vehicle been garaged in the State of Victoria. (7) Mrs Sweedman was born in the State of Victoria on 1 May 1933. She had moved from Victoria to reside in Queensland in or about March 1946, and moved from there to reside at her current address in New South Wales in or about 1961. Mrs Sweedman has resided at her current address of 6 Railway Parade, Gravesend, New South Wales, for approximately 42 years. Mrs Sweedman is thus a resident of New South Wales, as she was at the time of the Accident. (8) Mrs Sweedman is a citizen of Australia, and a subject of the Queen, by virtue of her birth in Australia. (9) The Commission is a body corporate established by the Act. (10) To the extent necessary to determine the questions reserved in the form of a special case (and for no other purpose), it can be assumed that the Accident occurred because of the negligence of Mrs Sweedman, in particular in failing to give way when obliged to do so."

[55]

The cases dealing with the deductibility of social service benefits and pensions largely accord with those general principles. So, in Espagne an invalid pension conferred under Pt III of the Social Services Act 1947 (Com) was held not to be deductible because it was granted in exercise of an administrative discretion as a benefit to the victim after consideration of his situation, entirely for his use and benefit and not in relief of any person antecedently liable to him to compensate him in any way for his disability.[33] But in Graham v. Barker[34], where for similar reasons a pension which accrued to the appellant as a result of his participation in a contributing superannuation scheme was held not to be deductible, "sick pay" was held deductible on the basis that it was the measure, no more and no less, of the employee's right to receive ordinary pay notwithstanding his absence on sick leave, and thus because it was impossible to say that pro tanto there had been any loss of wages.[35] In Parry v. Cleaver[36] it was held that a police pension was not deductible because it was payable in any event, not dependent on loss of earning capacity, and because it was the reward of pre-injury service and therefore not relevant to the loss of post injury wages.[37] Contrastingly, in Batchelor v. Burke[38] and Haines v. Bendall[39] it was held that workers' compensation was to be taken into account in calculating the interest payable on common law damages for loss of earnings. Most importantly, in Fox v. Wood[40] it was said that workers' compensation should be deducted from the damages recoverable for loss of earnings unless the legislation required the worker to repay the compensation out of the damages recovered. As Gibbs, CJ. explained, it was only where the worker was obligated to pay the net amount of compensation which he had received, so that he neither gained nor lost anything by the receipt and repayment, that the question of workers' compensation could be ignored in the assessment of damages.

[88]

"The rule of construction confining general words to an operation which accords with the principles adopted in our Courts for the exterritorial recognition of rights would, I think, be applied to a statute of the sovereign British Parliament containing provisions expressed as those of the Victorian enactment. There is no reason to consider it less applicable to the statute of a subordinate legislature. The circumstance that the power of the subordinate legislature is territorially restricted affords, if anything, rather more than less reason for applying the prima facie rule. The statute contains no express or implied indication of any fact, matter or thing, in, or connected with, the territory, which it adopts as a criterion of its operation. A statute discharging obligations might be considered a law in and for Victoria if its operation were expressly based upon any one of a great number of things which touch and concern Victoria. It might be enough if it were based upon some connection of the obligee or of the obligor with Victoria, such as domicil, residence, or presence there, or perhaps even upon a remoter connection, such as official employment in or out of the State under the Government, or liability to the State in respect of taxes or other Crown debts. The connection might suffice if the enactment were based upon some fact occurring in Victoria affecting the creation of the obligation, such as the delivery of an instrument, the communication of an offer or of an acceptance, or the presence of one of the parties there when any of these things took place anywhere; or upon some circumstance or event affecting the existence of the obligation considered as property, such as the local situation of a bond or negotiable instrument, or affecting its performance considered as a contract, such as payment in Victoria. Again, the Legislature might fasten upon the situation within the State of property over which the obligation is secured. But if any such enactment were considered a law in and for Victoria the reason would be that it is a law made with respect to the matter upon which its operation is based and that the matter is one of Victorian concern... acquired under foreign law."

[100]

The decision of the High Court in Street v. Queensland Bar Association[78] established that when a person alleges that he or she is subject to a disability or discrimination in a State other than his or her State of residence a comparison must be made between the disability or discrimination to which the person is purportedly subjected in the other State and the disability or discrimination, if any, to which he or she would be subjected if resident in the other State.[79] The section is not concerned with whether the requirements of the legislating State apply equally to residents in that State and a resident in another State but with whether any disability imposed upon, or discrimination against, a resident in another State would apply equally to him or her if resident in the legislating State.[80] It is also recognised that a provision which applies to residents and non-residents alike may still operate in a fashion according to the actual situation of the person to whom it applies so as to engage the operation of the section.[81] Consequently, the section is not concerned with the form in which the law in question subjects the individual to the disability or discrimination. It is enough that the practical effect of the law is to subject the individual to discrimination or disability, whatever the means by which that is brought about.[82] A governmental measure which is expressed to discriminate on a ground which is "a natural or ordinary concomitant of out-of-State residence" may single out protected persons for differential treatment as surely as if out-of State residence were the ground expressed.[83] In order, however, for s. 117 to apply it must appear that, were the non-resident person a resident of the legislating State, that different circumstance would of itself either effectively remove the disability or discrimination or, for practical purposes in all the circumstances, mitigate its effect to the point where it would be rendered illusory. A disability or discrimination is rendered illusory if the fact of residence would substantially deprive it of its onerous nature, and a disability or discrimination based upon grounds apart from residence is effectively removed if those grounds relate to characteristics which are in the circumstances concomitants of the individual's notionally changed residence.[84]

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Legislation Cited (10)