TURNER v GEORGE WESTON FOODS LTD TRADING AS TIP TOP BAKERIES

District Court Act 1973 Interpretation Act 1987 Limitation Act 1969 LEGISLATION CITED: Motor Accidents Act 1988 Supreme Court Act 1970 Supreme Court Rules Worker's Compensation Act 1987 Workmen's Compensation Ordinance 1949-1968 (NT)

Baker v Willoughby [1970] AC 467 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297 Ganter v Whalland (2001) 54 NSWLR 122 Grant v Royal Rehabilitation Centre Sydney (1999) 47 NSWLR 263 Johnson v Perez (1988) 166 CLR 351 CASES CITED: Kizbeau Pty Ltd v W G & B Pty Ltd (1995) 184 CLR 281 Nikolaou v Papasavas, Phillips & Co (1989) 166 CLR 394 O'Brien v McKean (1968) 118 CLR 540 South Eastern Sydney Area Health Service v Gadiry & Anor (2002) 54 NSWLR 495 Tickle Industries Pty Ltd v Hann & Anor (1974) 130 CLR 321 Westpac Banking Corporation v Tomassian (1993) 32 NSWLR 207 Willis v The Commonwealth (1946) 73 CLR 105

David Jason Turner - Claimant in 40010/06 & 40465/06 PARTIES: George Weston Foods Limited t/as Tip Top Bakeries (Newcastle) - Opponent in 40010/06 George Weston Foods Limited - Opponent in 40465/06

COUNSEL: D J Russell SC - Claimants L King; P Rickard - Opponents

SOLICITORS: Sparke Helmore Lawyers - Claimants Goldbergs Lawyers - Opponents

LOWER COURT DATE OF DECISION: 13 & 16 December 2005

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40010/06 CA 40465/06 DC 530/05

BEAZLEY JA HODGSON JA CAMPBELL JA

30 March 2007 DAVID JASON TURNER v GEORGE WESTON FOODS LIMITED T/AS TIP TOP BAKERIES (NEWCASTLE) DAVID JASON TURNER v GEORGE WESTON FOODS LIMITED Judgment 1 BEAZLEY JA: I agree with Campbell JA. 2 HODGSON JA: I agree with the orders proposed by Campbell JA and with his reasons. I would add the following comments. 3 The phrase "those damages" in s.151Z(1)(d) refers to "the damages in respect of the injury" that "some person other than the employer" has "a liability … to pay", as referred to in the opening words of s.151Z(1). Those words are apt to refer to the actual amount of those damages for which such liability actually exists, not a hypothetical amount as determined in hypothetical proceedings other than the proceedings in which the question of indemnity under s.151Z(1)(d) is determined. Thus, there would need to be good reason if any date other than the date of determination of the question of indemnity is to be adopted as the date as at which the damages are to be determined; and as Campbell JA demonstrates, there is no such reason. 4 There is a theoretical possibility that a person against whom a claim under s.151Z(1)(d) is made will face proceedings brought long after the incident giving rise to the liability, since each payment of compensation gives rise to a new cause of action for indemnity. But it is likely that an employer will make a claim for indemnity quite soon after beginning to pay compensation; and if proceedings for indemnity are necessary, it is unlikely that those proceedings would be brought later than six years after payment for compensation has commenced (unless, as this case, indemnity payments have been made voluntarily). In any event, the injustice of any delay is not greatly affected one way or the other by the question of the date as at which the amount of the damages is to be assessed: the actual date when the damages are assessed will be the same in any event. 5 CAMPBELL JA: This is an application for extension of time to seek leave to appeal, leave to appeal, and if leave is granted, the hearing of the appeal, concerning a judgment given by her Honour Judge Sidis in the District Court at Newcastle on 16 December 2005. That judgment gave effect to principles and findings contained in reasons for judgment her Honour delivered on 13 December 2005. 6 Graeme Bernard Shears ("the Worker") was, in 1991, an employee of the opponent. On 3 November 1991 the Worker was a passenger in a motor vehicle struck from the rear by a vehicle driven by the claimant. Both in the court below, and in this appeal, the claimant admits that the collision resulted from a breach of the claimant's duty of care to the Worker. 7 Although the Worker was injured in the collision, he did not sue the claimant to recover damages concerning those injuries. However, because the collision occurred in the course of the Worker's journey home from work, he was entitled to receive worker's compensation payments from the opponent. 8 On 31 January 2005 the opponent commenced the proceedings from which leave to appeal is sought by filing an ordinary Statement of Claim in the District Court. That Statement of Claim was one whereby the opponent sought indemnity from the claimant, pursuant to section 151Z(1)(d) of the Worker's Compensation Act 1987, for amounts of compensation that it had paid to the Worker. Section 151Z provides: 151Z Recovery against both employer and stranger (1) If the injury for which compensation is payable under this Act was caused under circumstances creating a liability in some person other than the worker's employer to pay damages in respect of the injury, the following provisions have effect: (a) the worker may take proceedings both against that person to recover damages and against any person liable to pay compensation under this Act for payment of that compensation, but is not entitled to retain both damages and compensation, (b) if the worker recovers firstly compensation and secondly those damages, the worker is liable to repay out of those damages the amount of compensation which a person has paid in respect of the worker's injury under this Act, and the worker is not entitled to any further compensation, (c) if the worker firstly recovers those damages the worker is not entitled to recover compensation under this Act, (d) if the worker has recovered compensation under this Act, the person by whom the compensation was paid is entitled to be indemnified by the person so liable to pay those damages (being an indemnity limited to the amount of those damages), (e) if any payment is made under the indemnity and, at the time of the payment, the worker has not obtained judgment for damages against the person paying under the indemnity, the payment is, to the extent of its amount, a defence to proceedings by the worker against that person for damages, (e1) if any payment is made under the indemnity and, at the time of the payment, the worker has obtained judgment for damages against the person paying under the indemnity (but judgment has not been satisfied), the payment, to the extent of its amount, satisfies the judgment, (f) all questions relating to matters arising under this section are, in default of agreement, to be settled by action or, with the consent of the parties, by the Commission. … (5) For the avoidance of doubt, this section applies and is taken always to have applied to the recovery of compensation or damages, whether or not the compensation or damages were paid under an award or judgment. For example, compensation or damages may be paid under an agreement."

Extension of Time and Leave to Appeal? 9 The judgment the claimant seeks to appeal from was given on 16 December 2005. A Notice of Appeal Without Appointment was filed on 4 January 2006. A Notice of Appeal With Appointment was filed on 4 April 2006. These notices of appeal were filed on the assumption that the claimant had an appeal as of right. 10 Section 127(1) District Court Act 1973 confers on a party who is dissatisfied with a judge's judgment or order in an action a right of appeal to the Supreme Court. Section 48(2)(f) Supreme Court Act 1970 assigns any such appeal to the Court of Appeal. Section 127(2) District Court Act 1973 provides that certain types of appeal lie only by leave of the Supreme Court. One such type of appeal is: "(c) an appeal from a final judgment or order, other than an appeal: (i) that involves a matter at issue amounting to or of the value of $100,000 or more, or (ii) that involves (directly or indirectly) any claim, demand or question to or respecting any property or civil right amounting to or of the value of $100,000 or more," 11 Part 51 Supreme Court Rules 1970 continues to govern appeals to the Court of Appeal. Part 51 rule 8 provides: "Appeals as of right Where an appeal to the Court of Appeal is restricted by reference in any Act to a specified amount or value, the appellant shall, within the time limited for instituting the appeal, file and serve on each necessary party an affidavit stating facts which show that the restriction does not apply." 12 That rule applied in the present case, because of the limitation imposed by section 127(2)(c) District Court Act. No affidavit of the type required by Part 51 rule 8 was filed, either within the time limited for instituting the appeal, or even by the time that argument of the appeal had ended. Instead, the claimant filed an application for leave to appeal, against the possibility that leave might be required. 13 An application for leave to appeal is required, by Part 51 rule 4 Supreme Court Rules, to be made by filing a summons seeking leave within 28 days after the material date. In the present case, a summons seeking leave to appeal was not filed until 21 July 2006. Thus, leave to appeal can be granted only if an extension of time is granted for filing the application for leave to appeal. 14 At the hearing before us, counsel for the claimant presented argument concerning why, in his contention, more than $100,000 was involved in the appeal. I do not propose to consider that argument, when the type of factual basis for it that Part 51 rule 8 requires has not been provided. 15 Approaching the matter on the basis that an appeal will be possible only if leave is granted, in my view the question involved in the appeal is of sufficient importance to warrant the grant of leave to appeal. Further, even though the notices of appeal that were filed were not competent, without a Part 51 rule 8 affidavit, to start an appeal as of right, they had the practical effect of notifying the opponent of the desire of the claimant to appeal. The opponent does not assert it would suffer any prejudice if the time for seeking leave to appeal were extended, and leave to appeal granted. It is appropriate to grant both the extension of time, and leave to appeal.

The Basis of the Claimant's Dissatisfaction 16 The opponent had paid, by the time the Amended Statement of Claim was filed in the District Court on 27 September 2005, a total of $248,330.43, made up as follows: a) Weekly payments: 174,762.59 (and continuing as at 15 January 2005) b) Medical, chiropractic and rehabilitation expenses: 29,482.49 c) Lump sum payments pursuant to ss66/67 and interest thereon: 44,085.35 248,330.43

17 Before the opponent brought proceedings against the claimant, the claimant paid to the opponent a total of $122,228.51. This was paid by two amounts; $11,394.77 in September 1994, and $110,833.74 in June 2000. 18 The opponent sought an indemnity from the claimant concerning these amounts of compensation it had paid, minus the amounts it had received from the claimant, plus interest. The opponent conceded that, of that amount, the sum of $3,423.60 was statute barred for the purposes of its claim for that indemnity. 19 The amount of the verdict entered at the trial was $135,369, plus interest of $28,285, making a total of $163,654. 20 Because section 151Z(1)(d) places an upper limit on the amount of indemnity an employer who has paid compensation can recover, the learned trial judge assessed the damages to which the Worker would have been entitled if he had sued the claimant for damages in connection with his injuries. That assessment was made in accordance with the Motor Accidents Act 1988. The figure for damages that she arrived at was $606,533. It is correct in principle for a trial judge hearing the first application for an indemnity under section 151Z(1)(d) concerning a particular injury suffered by a worker to determine the quantum of damages to which the worker would have been entitled if the worker had sued: Grant v Royal Rehabilitation Centre Sydney (1999) 47 NSWLR 263. 21 At the time of the accident, the Worker was a supervisor in the "bread room" of the opponent's factory. His tasks included loading and unloading crates and boxes, providing crates for other employees, working on the machines, packing bread into bags and then into boxes, and carrying out minor repairs to the machines. He also supervised other employees in the bread room. 22 The Worker gave evidence, which the trial judge evidently accepted, that after the motor vehicle accident he was immediately sore and stiff in his back, and that after a few days he attempted to return to work, but by then the pain had spread to his neck. After consulting his general practitioner, he undertook a gradual return to full-time work on restricted duties. He wore a collar for about six months, and was provided with physiotherapy. After his return to work he suffered some pain in going about his work, but was able to do the work, apart from some of the heavier aspects of it. Those heavier aspects he delegated to workers whom he supervised. Between 1991 and 1996 he took no sick leave in respect of the injury suffered in the motor vehicle accident. 23 The trial judge found that in 1996 or 1997 the Worker was "sent home because he could not do all of the work required of him". Apart from a short trial period, he has not worked since being sent home. At the time he was sent home, he was told his job would be kept open for two years if he could return on full duties. However, nothing came of that offer. His employment was formally terminated in 2003. 24 At the time of the hearing, the Worker was 51 years of age. He had been educated to year 9, and before taking up his employment with the opponent he had worked in unskilled labouring positions. The trial judge found that it was "highly unlikely that he will return to any form of employment by reason of the injury suffered." 25 The trial judge carried out the assessment of damages to which the Worker would have been entitled, had he sued, by assessing the quantum as at the date of the trial, namely December 2005. The sole ground of appeal that is pressed, is that the trial judge was in error in assessing the damages as at that date. 26 Rather, the claimant submits, the quantum should have been assessed as at the time that an action for damages brought by the Worker against the claimant would, in the ordinary course of things, have been heard. The claimant had submitted to the trial judge that that date was December 1995 at the latest. The claimant submits that, if the damages had been assessed as at that date, they would have been assessed as at a time when the Worker was still in employment, and had suffered comparatively little past economic loss, and as at a time when it would appear as though the Worker would be likely to suffer very little future economic loss. That situation is to be contrasted, the claimant says, with the situation that the trial judge in fact found, in assessing damages as at the date of the trial, that the Worker had had years of unemployment and was likely to be unemployed for the rest of his working life, with the result that past economic loss was assessed at $149,943, future economic loss was assessed at $283,440, and superannuation was allowed in relation to both past economic loss and future economic loss. 27 The damages that needed to be assessed for the purpose of section 151Z(1)(d) were damages assessed in accordance with the Motor Accidents Act 1988. Section 43 of that Act required claims not relating to the death of a person to be made within six months of the accident, though it was possible to make the claim after six months if a full and satisfactory explanation for the delay in making the claim was given. Section 52(4) of that Act provided that a claimant was not entitled to commence proceedings in respect of a claim more than three years after the date on which the claim must be made under section 43, except with the leave of the court. Thus, the combined effect of sections 43 and 52(4) was that, unless the leave of the court was obtained, proceedings in respect of a claim had to be commenced within three years and six months of the date of the accident. Thus, in the present case, if the Worker had begun an action, he would have needed to either have begun it by 3 April 1994, or have obtained the leave of the court to begin it later. Taking into account both the prospect that he might have obtained leave to commence it later, and the prospect that an action, though commenced in time, might not have been brought on for hearing until the Worker's condition had stabilised, it is far from clear to me that it is likely that any assessment of damages, had the Worker brought an action for damages, would be likely to have been made before the worker was "sent home". However, it is unnecessary to reach any final view on that, because the remedy that the claimant seeks is a new trial, and if that remedy is granted the question of by what date any action for damages by the Worker would have likely to have been determined would be re-litigated. And, in any event, the precise date as at which any such action by the Worker would be likely to have been determined does not matter for considering the general point of principle that the claimant raises.

The Claimant's Arguments - Analogy with Damages Assessment for Solicitor's Negligence 28 There were three separate arguments by which the claimant submitted that it was appropriate to assess the damages as at the date when an action for damages by the Worker against the claimant would in the ordinary course of things have been heard. The first was by analogy with the date as at which damages are assessed if a plaintiff had instructed a solicitor to bring an action for damages against some third party, and through the negligence of the solicitor that action is never heard, either because the solicitor does not commence the action before a limitation period expires, or because the solicitor commences the action but is so dilatory in advancing it that the action is dismissed for want of prosecution. 29 Johnson v Perez (1988) 166 CLR 351 was a case where a solicitor began the plaintiff's action within the limitation period but delayed bringing it on so that it was struck out for want of prosecution. The trial judge in Johnson v Perez had assessed damages that would have been recovered if the plaintiff's action against the third party had succeeded by reference to the practices governing assessment of damages at the time of hearing of the professional negligence action against the solicitors. In the High Court, the majority (Wilson, Toohey, and Gaudron JJ, and Dawson J in a separate judgment) held that the damages should have been assessed as at the date when the action was dismissed for want of prosecution (at 367, 368, 391). Mason CJ, while coming to the same conclusion as the majority that the appeal should be allowed, preferred (at 360-361) a different date for assessment of damages, namely the date as at which it was likely the actions, if not conducted negligently, would have come on for hearing. 30 Similarly, in Nikolaou v Papasavas, Phillips & Co (1989) 166 CLR 394 Wilson, Dawson, Toohey and Gaudron JJ held that, in an action for damages against a solicitor who had failed to commence litigation against a third party before a limitation period expired, damages should be assessed as at the date the cause of action against the solicitor became complete, namely the date when the cause of action against the third party became statute barred (at 404). In Nikolaou, Mason CJ would again have assessed the damages as at the date at which the action would have been determined, if advanced without negligence (at 398). 31 I will not pause to consider what possible justification there might be for the claimant asking this Court to follow the view of Mason CJ in Johnson v Perez and Nikolaou, rather than the ratios of those cases, which are to be found in the judgments of Wilson, Dawson, Toohey, and Gaudron JJ. Rather, I accept the submission of the opponent that no analogy should be drawn between the assessment of damages for the type of legal wrong involved in Johnson v Perez and Nikolaou, and the assessment of damages that is required to take place for the purpose of section 151Z(1)(d). 32 An action for negligence against a solicitor whose negligence prevents his client from having decided some litigation that the client wishes to bring against a third party is one in which the client is asserting that, were it not for the negligence of the solicitor, the client would have continued to pursue that litigation. The loss that the client suffers is the loss of the opportunity to pursue that litigation. While continuing delay on the part of the solicitor is a breach of his obligations to his client, the breach that is the cause of the particular loss that the client seeks damages for has occurred only when the solicitor's delay has actually prevented the client from pursuing the litigation. Thus, a consideration of when it is that that loss was sustained is a necessary part of the cause of action for negligence being brought against the solicitor. The majority in Johnson v Perez and Nikolaou held that generally damages are assessed as at the date of the breach, though that rule could be departed from if necessary to provide adequate compensation, and in those cases there was no reason to depart from it: 166 CLR at 367, 404. 33 By comparison, the right under section 151Z(1)(d) is a statutory right to indemnity, not itself a claim for damages: Westpac Banking Corporation v Tomassian (1993) 32 NSWLR 207 at 209 per Kirby A-CJ, 215-6 per Mahoney JA, 220 per Meagher JA. Such an action for indemnity can be (and frequently is) brought in circumstances where the worker in question has not sued the person who is liable to pay the damages of which section 151Z(1)(d) talks. Indeed, such an action for indemnity can be brought in circumstances where the worker in question never had the slightest intention of suing the person who is liable to pay those damages. The assessment of damages that is made for the purpose of an action under section 151Z(1)(d) is an essential part of the calculation of the amount of the indemnity to which the person by whom the compensation was paid is entitled, in the sense that the total amount for which indemnity is ordered can never exceed that amount of damages. But, subject to that upper limit, it is the amount of the employer's payments of compensation that is recovered by the action. Thus, an assessment of the damages that the worker would have got at some earlier time is not an essential part of the proof of the cause of action of the plaintiff in the section 151Z(1)(d) action, in a way analogous to that in which proof of the damages that the plaintiff would have got if litigation he wished to bring against a third party had been tried is an essential part of proof of the cause of action of a plaintiff against a solicitor whose negligence has caused that action against the third party to be incapable of being tried. 34 Further, the damages that are being assessed in the section 151Z(1)(d) action are damages that would be awarded in an action for personal injury. Prima facie, damages for personal injury are assessed as at the date of the trial: O'Brien v McKean (1968) 118 CLR 540 at 545; Baker v Willoughby [1970] AC 467 at 490-491, 496; Luntz, Assessment of Damages for Personal Injury and Death: General Principles (LexisNexis Butterworths 2006) para [4.8]. No reason has been shown to depart from that usual practice in the present case.

The Claimant's Arguments - Construe s.151Z(1) as a Whole 35 The second argument that the claimant puts forward is that section 151Z(1) needs to be construed as a whole. Section 151Z(1)(a) has application only when the worker in question actually takes proceedings against the person liable to pay damages. For the reasons given in para [27] above, any such proceedings would need to be commenced within 3½ years of the accident, unless the court gave leave for them to be commenced later, and so would be likely to result in an assessment of damages being made considerably earlier than 14 years after the date of the accident. 36 The argument continues by observing that section 151Z(1)(b) and (c) each apply only if the worker "recovers" damages from the tortfeasor. As section 151Z(5) makes clear, that situation could arise if either the worker sued, or if the worker received damages through a settlement or other out-of-court arrangement. Even so, it is still likely that any damages so "recovered" would be either assessed by a court, or determined through settlement or agreement, earlier than 14 years after the accident. A similar limitation should, the claimant submits, be imposed upon the damages recoverable under section 151Z(1)(d). 37 I do not find that argument persuasive. The whole of section 151Z(1) can be seen as the means of achieving two objectives. The first is that, where an injured worker has a right to receive compensation from his or her employer, and also has a right to receive damages from some other person whose fault has caused the injury, it should be the person whose fault caused the injury that ultimately bears the cost of providing a remedy to the worker for that injury, up to the full amount of the damages for which that wrongdoer is liable. The second is that the injured worker should not be able to retain both the compensation and the damages, and thereby be doubly compensated. 38 Different paragraphs in section 151Z(1) deal with different circumstances in which those overall objectives come to be applied. They do so in different ways. Paragraph (a) in section 151Z(1) confers permission on the worker to bring proceedings against both the tortfeasor for damages, and the person liable to pay compensation for compensation. It also states a general principle that the worker "is not entitled to retain both damages and compensation", without spelling out the means by which that lack of entitlement on the part of the worker is worked out. Paragraphs (b) to (e1) each start with the word "if", and each deals with what is to happen in a specific type of situation in which the one or both of the objectives of section 151Z(1) comes to be applied. Paragraphs (b) and (c) are concerned solely with the working out in specific situations of the objective that the injured worker should not be able to retain both the compensation and damages. Paragraph (d) also starts with the word "if", but it does not deal directly with the rights of the worker at all - rather, it deals with the rights of the employer and the tortfeasor between themselves, namely that the tortfeasor must indemnify the employer up to the maximum extent of the tortfeasor's liability. Paragraphs (e) and (e1) deal with how the general principle that the worker is not entitled to retain both damages and compensation comes to be applied in two different types of situation where a payment has been made under the indemnity created by section 151Z(1)(d). Paragraph (f) is concerned with the procedure by which the rights arising under other provisions of section 151Z are to be enforced. 39 The claimant is correct in submitting that section 151Z(1)(a) is concerned with one aspect of the consequences of a worker actually taking proceedings, and section 151Z(1)(b) and (c) are each concerned with a situation where the worker actually recovers damages. However, those instances of application of the objectives of section 151Z are simply not the same as the instance of application of those objectives with which section 151Z(1)(d) is concerned. When section 151Z(1)(d) aims to cover a different situation to those that section 151Z(1)(a), (b) and (c) cover, I see no reason to import into it an element that section 151Z(1)(a), (b) and (c) have, but which is not warranted by the wording of section 151Z(1)(d).

The Claimant's Arguments - Construe s.151Z(1)(d) to Avoid Injustice 40 The third basis upon which the claimant submits that damages should be assessed as at the date when an action for damages by the Worker would in the ordinary course of things have been brought on for trial, is a submission that the approach her Honour adopted results in serious injustice. I set out the substance of the claimant's argument in this respect in the following paragraph. 41 There is a separate cause of action for indemnity in relation to each payment of compensation that the employer of an injured worker has made: South Eastern Sydney Area Health Service v Gadiry & Anor (2002) 54 NSWLR 495. The first payment of compensation by the opponent to the Worker was made as early as 21 November 1991. There is a six-year limitation period for the recovery of any particular amount of indemnity pursuant to section 151Z(1)(d). That is because any such recovery of indemnity is on "a cause of action to recover money recoverable by virtue of an enactment", and thus has a six-year limitation period applied to it, pursuant to section 14(1)(d) Limitation Act 1969. However, because there is a separate limitation period in relation to each amount of indemnity, a person in the position of the claimant can find themselves, a little over 13 years from the date of the first payment, confronted for the first time by litigation that claims an indemnity. Bringing litigation about an event many years after the occurrence of that event has an inherent tendency to cause unfairness and prejudice that is so notorious that it has led to the enactment of limitation periods: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 552 per McHugh J. The claimant in the present case submits he finds himself in a similar situation of unfairness and prejudice, as a result of being required to litigate concerning events more than 13 years before the filing of the Statement of Claim. That prejudice is, the claimant submits, "totally incurable by the Claimant". The claimant points to the principle enunciated by Barwick CJ (with whom McTiernan J agreed) in Tickle Industries Pty Ltd v Hann & Anor (1974) 130 CLR 321 at 331: "It is, in my opinion, a sound rule of statutory construction that a meaning of the language employed by the legislature which would produce an unjust or capricious result is to be avoided. Unless the statutory language is intractable, an intention to produce by its legislation an unjust or capricious result should not be attributed to the legislature."

And the way of not having that injustice arise, the claimant submits, is by construing section 151Z(1)(d) as requiring the damages to be assessed at an earlier date than the date of the trial of the action for indemnity. 42 While a general principle of the type there stated by Barwick CJ is undoubted, I am not satisfied that it leads, in the present case, to the conclusion for which the claimant contends. I will start by considering, in the same way that the claimant has done, whether an injustice in the present case results from the trial judge having assessed damages as at the date of the hearing.

Considering the Claimant's Injustice Argument on its Own Terms 43 The practical reason why the claimant is faced with litigation, more than 14 years after the event, about the circumstances of the accident is because the claimant made payments of indemnity to the opponent in September 1994 and June 2000. If, at either of those dates, the claimant had been concerned to obtain a court decision fixing the amount of damages for the purpose of section 151Z(1)(d), so that its total liability thenceforth would have been capped at the figure so assessed, it could have declined to make the payments, and presented the opponent with the choice between, on the one hand, not receiving indemnity at that time and risking that its right to receive the indemnity for the payments it had made to that date might become statute barred, or, on the other hand, suing to establish its right of indemnity. 44 In the present case, there is no submission that any evidence has actually become unavailable. The Worker was called in the proceedings, and an extensive set of medical reports was tendered, without any doctor being required for cross-examination. Thus, there is not the type of injustice that comes from actual loss of evidence. 45 Even if it were true in the present case that the time when an action by the Worker for damages would have been brought on was December 1995, and an assessment as at that date would be likely to have resulted in a lower assessment of damages than the assessment her Honour carried out as at December 2005, that would only be because by December 1995 the full extent of the seriousness of the Worker's injuries had not revealed itself. While it is likely that as at December 1995 a court assessing the damages would recognise a possibility that the ongoing pain that the Worker had been suffering might later prevent him from being in employment, or that his employer might cease to show the tolerance it had, up to December 1995, shown to the Worker not being able to perform the full range of duties he could perform before the accident, those possibilities would just as likely not have been treated as the certainties that they ultimately matured into. 46 The effect of the claimant's submission in the present case is, it seems to me, to assert that, if damages had been assessed at an earlier date than the trial judge in fact assessed them, the court assessing the damages would probably have arrived at a figure that, in the light of what is now known, would result in the cap on the indemnity that is recoverable under section 151Z(1)(d) being fixed in an amount that is an under-compensation. Providing an under-compensation to the plaintiff in the section 151Z(1)(d) action is itself a form of injustice. 47 Further, for the trial judge to assess the damages using all the information that is available at the time of the hearing is consistent with the principle expressed by Latham CJ in Willis v The Commonwealth (1946) 73 CLR 105 at 109: "But, where actual facts are known, speculation as to the probability of those facts occurring is surely an unnecessary second best. Damages are awarded for injury actually suffered and for prospective injury. Prospective injury can only be estimated with more or less probability. But where the extent and character of what would at one time be described as prospective injury depends upon the happening or non-happening of a particular event and that event has in fact happened, it is unnecessary to speculate as to whether or not this event might happen and, if so, when. In such a case prospective damage (or diminution of damage) has become actual."

To similar effect is the statement of Dixon J, at 116: "… where facts are available they are to be preferred to prophecies."

and the joint judgment in Kizbeau Pty Ltd v W G & B Pty Ltd (1995) 184 CLR 281 at 294-5. 48 I am far from satisfied that, if one confines one's attention solely to the effect, in the facts of the present case, of the trial judge having assessed damages at the date of the trial, any net injustice has resulted.

Correct Application of the "Avoid Unjust Results" Principles 49 But there is, it seems to me, an error in the way in which the claimant has sought to apply the general "avoid unjust or capricious results" principle. That principle is a principle for the construction of statutes, and needs to be applied at a higher level of generality than by applying it directly to the circumstances of an individual case. That is the way in which Barwick CJ himself applied it in Tickle. 50 In Tickle, Barwick CJ, at 334, explained how a provision in the Workmen's Compensation Ordinance 1949-1968 (NT) not different in any respect material to the present case to section 151Z(1)(d) works: "Reading the description "the person liable to pay damages" as meaning the tortfeasor, par ( d ) makes an intelligible and just provision. The compensating employer must establish against the tortfeasor the condition of his right of indemnity. He must establish that the defendant was the tortfeasor: that the injury he caused was a compensable injury: that the amount paid and claimed in the action was properly payable under the Compensation Ordinance: and the amount of damages properly assessable in respect of injury caused by the tortfeasor. I see no difficulty in the assessment of damages in the employer's action. Such damages will not be in any sense "notional". Having established these matters, the employer will be entitled to judgment for the amount of compensation paid, if the damages equal or exceed that amount. If not, he will have judgment for the amount of the damages." 51 In Tickle, at 326-327, Barwick CJ explained why a provision that worked in that way was a just one: "There is obvious and necessary justice in giving the employer, who has been involved in the payment of compensation by the wrongful act of another, a right of recovery against that other, but only up to the amount of damage which that other has caused and for which he was legally responsible. It is also necessarily just that the employee shall not be able to defeat that right of recovery. Clearly, the right to indemnity given by s 6(2) was a right of the compensating employer, in no sense in the control of the injured employee or of his dependants." 52 In Tickle, Barwick CJ applied the principle of construction that I have set out at para [41] above as an aid in rejecting a particular construction that the Supreme Court had adopted of the Northern Territory analogue of section 151Z(1)(d). The Supreme Court's construction was that the right of indemnity it conferred became statute barred at the same time as a cause of action by the injured worker against the tortfeasor would have become statute barred. Barwick CJ said, at 331 that such a construction "would deny par. (d) any operation except in a case where the workmen has sued the tortfeasor to judgment." I confess that I do not follow quite how his Honour arrived at that view, and cannot at present see why the construction that his Honour was rejecting would not also have permitted paragraph (d) to operate in a situation where the workman had not actually sued the tortfeasor to judgment, but would have been free, so far as limitation statutes were concerned, to sue the tortfeasor to judgment if he so desired. 53 My puzzlement on that point does not matter, though, for the purpose of understanding the way in which the "avoid unjust or capricious results" guide to construction was applied. That was done when Barwick CJ stated that the construction that the Supreme Court had arrived at as one that was (331) " … both obviously unjust to the compensating employer and capricious as placing it in the hands of the compensated workmen to prevent or defeat any right of the employer to recover from the tortfeasor the whole or any part of compensation which he has paid." 54 It was that type of result that was to be avoided, by the application of the "avoid unjust or capricious results" guide to construction. The type of injustice and capriciousness that he saw was one that was not the result of any particular factual circumstance in which the statute that was being construed was applied to the facts of the particular case before him. Rather, it was an injustice and capriciousness that resulted from the failure to realise the objectives of the legislation, expressed in fairly general terms. 55 Understood in that way, the principle is closely similar to the statutory command of section 33 Interpretation Act 1987. Section 33 says: "In the interpretation of a provision of an Act … a construction that would promote the purpose or object underlying the Act … (whether or not that purpose or object is expressly stated in the Act …) shall be preferred to a construction that would not promote that purpose or object." 56 As Pearce and Geddes, Statutory Interpretation in Australia (6th edition 2006) say at [2.35], 59, "Interpretation by reference to consequences is essentially a shorthand version of the purposive approach to interpretation." 57 There are various ways in which an unjust or a capricious consequence can be identified by reference to the objectives of a particular piece of legislation. Sometimes it might be a failure to achieve the objectives of the legislation; sometimes it might be an actual frustration of the objectives; or sometimes it might be a stretching of the literal words of the statute beyond the objectives of the particular legislation being construed. I do not see anything in the assessing of damages as at the date of trial, in an action under section 151Z(1)(d), that is inconsistent, in any of these ways, with any of the objectives of section 151Z. 58 But there is another way in which an "avoid unjust results" approach to construction can sometimes be adopted: when two constructions are open on the language of a statutory provision, and one of those constructions is rejected on the basis that it produces bizarre practical results. As Mason and Wilson JJ said in Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297 at 321: "… when the judge labels the operation of the statute as "absurd", "extraordinary", "capricious", "irrational" or "obscure" he assigns a ground for concluding that the Legislature could not have intended such an operation and that an alternative interpretation must be preferred." 59 This approach to the construction of a statute can be taken even when the absurdity, extraordinariness, capriciousness, irrationality or obscurity arises from something other than a departure from what can be identified as the objectives of a particular piece of legislation. It amounts, in effect, to the judge saying "I simply do not believe that Parliament could have intended anything as bizarre as this." However, as I said in Ganter v Whalland (2001) 54 NSWLR 122 at 131, [36], before a court is justified in rejecting a construction on the basis that it produces an anomaly, that anomaly "… must be a very serious one, before the court is justified in using that anomaly as a reason for rejecting what otherwise seems the correct construction. Were courts to act otherwise, they would risk taking over the function of making policy choices which properly belongs to the legislature." 60 I do not see any such anomaly in the approach that the trial judge took to the construction of section 151Z.

Another Reason Favouring the Trial Judge's Approach 61 The operative words of section 151Z(1)(d) are: "If the injury for which compensation is payable under this Act was caused under circumstances creating a liability in some person other than the worker's employer to pay damages in respect of the injury … (d) if the worker has recovered compensation under this Act, the person by whom the compensation was paid is entitled to be indemnified by the person so liable to pay those damages (being an indemnity limited to the amount of those damages)." 62 In the construction of section 151Z(1)(d), the phrase "those damages" means the damages referred to in the opening words of section 151Z(1). In accordance with the ratio of Tickle, it would be possible for an employer who had paid compensation to recover an indemnity from the person liable to pay damages in respect of the injury, even if the first action to recover any such indemnity was brought after the limitation period for the worker to sue the tortfeasor had expired. If it is possible to bring the action seeking indemnity at that time, there is nothing in the wording of section 151Z(1)(d) that suggests that the amount of the damages ought be assessed at any earlier time. As Barwick CJ said in Tickle, at 333: "… the section does not require the continuance or persistence of the liability. Granted initial responsibility at the time of the receipt of the injury or death, the section provides its own remedy to the employer by the creation of a right of indemnity by the person responsible for the injury or death."

Conclusion and Orders 63 In these circumstances, the trial judge was not in error in assessing the damages as at the date of the trial. 64 I propose the following orders:

4. Claimant to pay costs of the opponent of the application for leave to appeal and of the appeal. **********

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