Wickham Freight Lines Pty Ltd v Ferguson

Court of Appeal (NSW)|2013-02-19|Before: Macfarlan JA, Barrett JA, Preston CJ

Thompson v Hill (1995) 38 NSWLR Wilson v State Rail Authority of NSW [2010] NSWCA 198; 78 NSWLR 704 Texts Cited: Fleming, Law of Torts, 9th ed (1998) Category: Principal judgment Parties: Wickham Freight Lines Pty Ltd (Appellant) Ian Ferguson (Respondent) Representation: Counsel: R A Cavanagh SC (Appellant) S Norton SC/J Reimer (Respondent) Solicitors: Moray & Agnew (Appellant) Brydens Law Office (Respondent) File Number(s): CA 2012/73188 Decision under appeal Jurisdiction: 9101 Citation: Ian Ferguson v Wickham Freight Lines Pty Ltd Date of Decision: 2012-03-02 00:00:00 Before: Delaney DCJ File Number(s): DC 2010/368913

Judgment 1MACFARLAN JA: On 7 November 2007, Mr Ian Ferguson, the respondent, was injured whilst delivering an empty motor vehicle trailer to the applicant's premises in Victoria. At the time, he was acting in the course of his employment by Cohuna Freighters Pty Ltd as a truck driver. Subsequently, he commenced proceedings in the District Court of New South Wales against the applicant claiming that his injuries were caused by the applicant's negligence. The parties to the present appeal agreed that the District Court has jurisdiction to hear the proceedings and that Victorian law is the lex loci delicti, with the consequence that Victorian law governs all questions of substance to be determined in the proceedings (John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; 203 CLR 503). 2By Notice of Motion filed on 2 November 2011, the applicant sought an order striking out the respondent's Statement of Claim on the basis that commencement of the proceedings was precluded by s 134AB of the Accident Compensation Act 1985 (Vic), a section considered by the High Court in Dwyer v Calco Timbers Pty Limited [2008] HCA 13; 234 CLR 124 and Maurice Blackburn Cashman v Brown [2011] HCA 22; 242 CLR 647. In support of the Motion, the applicant argued that that Act was applicable because, as is not in dispute, at the time of his accident the respondent was acting in the course of his employment by Cohuna Freighters Pty Ltd. 3Delaney DCJ dismissed the Notice of Motion on the basis of his view that the Accident Compensation Act relates only to issues between an employee and an employer, and cannot apply to proceedings, such as the present, in which an employee sues a third party. On appeal, the parties agreed that this reasoning was erroneous (see Martin v Bailey [2009] VSCA 263). They also agreed that his Honour erred in concluding that the evidence did not establish that the respondent's cause of action arose in Victoria. 4There are two issues on the appeal to this Court from Delaney DCJ's decision. The first is whether parts of s 134AB with which the respondent has not complied are merely procedural, as distinct from substantive, with the consequence that they are not to be applied by the District Court in the present proceedings. The second issue is whether, if those provisions are substantive and are therefore applicable to the proceedings, the respondent is able to take steps to comply with those provisions in the future so as to make these proceedings competent. The respondent submits that his Statement of Claim should not be struck out and that, instead, he should be given the opportunity to take such steps and to amend his Statement of Claim. 5I deal with these issues in turn.

APPLICATION OF THE ACCIDENT COMPENSATION ACT 1985 (VIC) 6The Accident Compensation Act is concerned with workplace injuries. Its objects are stated in s 3 and include the following: "(d) To provide adequate and just compensation to injured workers; (e) To ensure workers compensation costs are contained so as to minimise the burden on Victorian businesses". 7Section 98C contains detailed provisions concerning the recovery of compensation (as distinct from damages) for non-economic loss. Section 104B regulates the making of claims for compensation under s 98C. It provides for the making of non-curial assessments of the degree of any permanent impairment of the worker resulting from his or her work-related injuries. 8Section 134AB, which was inserted in 2000, is concerned with actions by a worker for damages in respect of a work-related injury. Its background is referred to in Barwon Spinners Pty Ltd v Podolak [2005] VSCA 33; 14 VR 622 at [2] - [14] and in Spotless Services Australia Ltd v Herbath [2009] VSCA 285; 26 VR 373 at [42] - [44]. It relevantly provides: "134AB. Actions for damages (1) A worker who is ... entitled to compensation in respect of an injury arising out of or in the course of, or due to the nature of, employment on or after 20 October 1999- (a) shall not, in proceedings in respect of the injury, recover any damages for non-pecuniary loss except- ... (iii) ... as permitted by and in accordance with this section; and (b) shall not, in proceedings in respect of the injury recover any damages for pecuniary loss except- ... (ii) ... as permitted by and in accordance with this section. (2) A worker may recover damages in respect of an injury arising out of, or in the course of, or due to the nature of, employment if the injury is a serious injury and arose on or after 20 October 1999. (3) ... [A] worker may not bring proceedings in accordance with this section unless- (a) determinations of the degree of impairment of the worker have been made under section 104B and the worker has made an application under subsection (4); or (b) ... the worker elects to make an application under subsection (4) on the ground that the worker has a serious injury within the meaning of this section. (4) ... [A] worker may only make an application- (a) if subsection (3)(a) applies, after the worker- (i) has advised the Authority ... that he or she accepts the determinations of degree of impairment; or (ii) has received the advice of the Authority ... ; or (b) if subsection (3)(b) applies- (i) after a period of at least 18 months has elapsed since the event or circumstance giving rise to the injury occurred ... ... (5) An application under subsection (4) must- (a) be in a form approved by the Authority; and (b) be accompanied by an authority in a form approved by the Authority, signed by the worker, authorising the release of medical information to the Authority or a self-insurer relevant to the application; and (c) be accompanied by- (i) a copy of all medical reports; and (ii) affidavits attesting to other material - existing when the application is made and of which the worker or his or her legal representative is aware and on which the worker intends to rely, or the substance of which the worker intends to adduce in evidence, in proceedings in accordance with this section or in any related proceedings. ... (7) The Authority ... must, within 120 days ... of receiving the application, advise the worker in writing- (a) that the worker is deemed to have a serious injury; or (b) if the worker is not deemed to have a serious injury, whether or not the Authority ... will issue a certificate under subsection (16)(a). ... (12) The worker must not commence proceedings in accordance with this section, other than an application under subsection (16)(b) ... unless- (a) the worker and the Authority ... hold or begin, a conference within 21 days after the response date; and (b) the Authority or self-insurer makes a statutory offer in writing in settlement or compromise of the claim at that conference, or after the conference begins but no later than 60 days after the response date; ... (15) If the assessment under section 104B made before an application under subsection (4) is made of the degree of impairment of the worker as a result of the injury is 30 per centum or more, the injury is deemed to be a serious injury within the meaning of this section. (16) If the assessment under section 104B of the degree of impairment of the worker as a result of the injury is less than 30 per centum, the person may not bring proceedings for the recovery of damages in respect of the injury unless- (a) the Authority ... (i) is satisfied that the injury is a serious injury; and (ii) issues the worker a certificate in writing consenting to the bringing of the proceedings; or (b) a court, other than the Magistrates' Court, on the application of the worker made within 30 days after the worker received advice under subsection (7) or, with the consent of the Authority under subsection (20), after that period, gives leave to bring the proceedings. ... (19) For the purposes of subsection (16)(b)- (a) a court, other than the Magistrates' Court, must not give leave unless it is satisfied on the balance of probabilities that the injury is a serious injury; ... (37) In this section- ... serious injury means- (a) permanent serious impairment or loss of a body function; or (b) permanent serious disfigurement; or (c) permanent severe mental or permanent severe behavioural disturbance or disorder; or (d) loss of a foetus. (38) For the purposes of the assessment of serious injury in accordance with subsections (16) and (19)- (a) the following definitions apply- ... (b) the terms serious and severe are to be satisfied by reference to the consequences to the worker of any impairment or loss of a body function, disfigurement, or mental or behavioural disturbance or disorder, as the case may be, with respect to- (i) pain and suffering; or (ii) loss of earning capacity- when judged by comparison with other cases in the range of possible impairments or losses of a body function, disfigurements, or mental or behavioural disturbances or disorders, respectively; ... ". 9Paragraphs (c) to (k) of s 134AB(38) contain further detailed provisions concerning the establishment of an injury as "serious". 10The scheme of s 134AB is thus that, by subsection (1), the recovery of damages for work-related injuries is precluded unless sought in conformity with the section and, by subsection (2), recovery of such damages is permitted in respect of "a serious injury". Qualifications on the right of recovery in respect of a serious injury are contained in the following subsections which specify the means by which it is to be determined whether "a serious injury" has been suffered. 11On appeal, the applicant submitted that s 134AB, as a whole, constitutes a substantive law of Victoria. If that is so, it must be applied by the District Court because Victorian law governs the respondent's proceedings in the District Court of New South Wales (see [1] above). The respondent accepted that s 134AB(2) forms part of the substantive law of Victoria and is applicable to the District Court proceedings. He did not expressly make that concession in respect of subsection (1) although such a concession would seem to be implicit in his acceptance that the District Court would be required by s 134AB to reject the respondent's claim for damages unless he established that his injury was "a serious injury" within the meaning of that section. 12In my view it is clear that at least subsections (1) and (2) of s 134AB constitute substantive laws of Victoria. They are relevantly the same as the New South Wales statutory provisions which were characterised as substantive laws in John Pfeiffer v Rogerson (see [11], [12] and [97] - [103]) and are undoubtedly concerned with "the kinds of damage, or amount of damages that may be recovered", these being issues that the plurality in John Pfeiffer v Rogerson characterised as substantive issues ([100]). 13The same conclusions are dictated by Thompson v Hill (1995) 38 NSWLR 714 and Swannell & Transport Accident Commission v Farmer [1998] VSCA 104; [1999] 1 VR 299. Both decisions, the former of this Court and the latter of the Victoria Court of Appeal, were concerned with s 93 of the Transport Accident Act 1986 (Vic) which is in similar terms to s 134AB of the Accident Compensation Act 1985 (Vic). 14The respondent however submits that even if s 134AB(1) and (2) are substantive provisions, the subsections that follow, concerning the determination of whether an injury is "a serious injury", are procedural and inapplicable in the District Court because procedural aspects of the proceedings are covered by the lex fori, being New South Wales law. 15I do not accept this submission so far as it relates to s 134AB(3) and (4) which, for reasons that appear below (see [23]), are the provisions that are critical to the determination of the present appeal. As is apparent from [10] above, these subsections are an integral part of the scheme enacted in s 134AB limiting common law entitlements to damages. In my view it cannot be concluded, as the respondent's argument requires, that the scheme embodied in s 134AB is simply one limiting entitlements to damages to those arising out of "serious" work-related injuries. In my view the scheme is one limiting damages to those arising from injuries which are determined in accordance with the specifications of the section to be "serious". It would be highly artificial, and in my view contrary to the apparent legislative intent of the section, for characterisation of an injury as "serious" to be made otherwise than by those means. 16The conclusion reached by this Court in Hamilton v Merck and Co Inc [2006] NSWCA 55; 66 NSWLR 48 is in my view distinguishable. In that case the Court was concerned with provisions of the Personal Injuries Proceedings Act 2002 (Qld) which required written notice of a claim to have been given, and a compulsory conference between the parties to have taken place, before the commencement of proceedings. The Court held that these provisions were procedural in character. Spigelman CJ (with whom Tobias JA agreed) held that the provisions concerned the "regulation of the mode or conduct of court proceedings" and constituted part of the "mechanism or machinery of litigation" (at [102]). Handley JA's view was to similar effect ([143]). Unlike the legislation considered in the cases to which I have earlier referred, the Queensland statute did not contain a statutory scheme modifying common law rights to damages. Rather, the statute was relevantly concerned only with the procedural means by which those damages could be recovered. 17As Spigelman CJ pointed out in Hamilton v Merck and Co Inc [2006] NSWCA 55; 66 NSWLR 48 provisions requiring steps to be taken before court proceedings are commenced are capable of constituting substantive conditions precedent (at [61]). His Honour instanced a legislative scheme that created a new right, such as that contained in the Compensation to Relatives Act 1897 considered in Maxwell v Murphy [1957] HCA 7; 96 CLR 261. In that case, rights to sue wrongdoers in respect of a person's death were given to the deceased person's family but actions were required to be commenced within 12 months. In considering whether the legislative amendment extending the time to sue operated retrospectively, the High Court concluded that the time limitation was substantive in character because it could not be separated from the right to damages (at 269). As Williams J said, "[t]he limited time within which the new right of action may be enforced is of its essence" (at 283). 18Spigelman CJ also instanced the New Zealand no fault liability scheme considered by this Court in James Hardie & Co Pty Ltd v Hall (1998) 43 NSWLR 554. In that case, Sheller JA (with whom Beazley and Stein JJA agreed) found that, when read in the context of the Act as a whole, the substantial effect of a prohibition upon commencing proceedings independently of the Act was "to substitute cover under the Act for the right to recover common law damages" (at 579). His Honour adopted Professor Fleming's description in the Law of Torts, 9th ed (1998) at 449 of the New Zealand legislative scheme as "a comprehensive system of exclusive compensation, replacing tort recovery ... for all 'personal injury by accident', including certain industrial diseases". Whilst s 134AB of the Victorian Accident Compensation Act does not have this breadth of operation, in my view it is nevertheless also, in effect, a legislative package from which particular elements going to the fundamental character of the scheme cannot be isolated as procedural provisions so as to render them inapplicable when proceedings are brought in interstate courts where the applicable substantive law is Victorian. As subsections (3) and (4) give effect to the legislative scheme of limiting proceedings for common law damages to situations where there has been serious injury within the meaning of the section, these provisions cannot be characterised as procedural. 19I do not consider that the view expressed by Bryson JA (with whom Handley AJA agreed) in Fuller v K & J Trucks Coffs Harbour Pty Ltd [2006] NSWCA 88; 67 NSWLR 516 that s 132 of the New South Wales Motor Accidents Compensation Act 1999 (making a medical assessment a pre-condition to an award of damages) is procedural (at [33] - [35]) stands in the way of this conclusion. His Honour expressed that view in a different context to the present and, as Ipp JA noted in that same case, (at [2] - [3]) a view on the question was not necessary for determination of the relevant ground of appeal. 20While there are subsections of s 134AB of the Accident Compensation Act 1985 (Vic) (in particular the conference provisions in subsection (12)) that may be procedural in nature, it is not necessary for the purposes of this case to decide whether this is so. The procedural nature of other aspects of s 134AB cannot, and does not, affect subsections (1) - (4) which are applicable to this case. For this reason the respondent may only commence proceedings in New South Wales in accordance with those provisions.

COMPLIANCE WITH THE ACCIDENT COMPENSATION ACT 1985 (VIC) 21On appeal, the respondent conceded that he had not complied with the requirements of s 134AB prior to filing his Statement of Claim in the District Court. However he submits that his proceedings should not be dismissed and that he should be given the opportunity to seek from the District Court leave under s 134AB(16)(b) to bring proceedings and "an order that [he] is entitled to damages as he has suffered a serious injury within the meaning of the Accidents Act" (Written Submissions [12]). 22To deal with this submission, it is necessary to outline the procedures for which s 134AB provides. 23Subsection (3) states two exceptions to the prohibition on a worker bringing proceedings for damages. The first applies where there has been a determination of the degree of impairment under s 104B and the worker has made an application under subsection (4). Neither of these events have occurred. 24The other exception applies where the worker elects to make an application under subsection (4). No such election or application has been made. 25However, the respondent submits that he can by-pass these steps and seek leave under subsection (16)(b) to bring these proceedings. That paragraph is however premised on an assessment having been made under s 104B of the respondent's degree of impairment as a result of his injury. This is evident from the opening words of the subsection. Such an assessment has not been undertaken. Furthermore the reference in subsection (16)(b) to the period of 30 days after the worker receives advice under subsection (7) of the outcome of the worker's application under subsection (4) assumes that such an application has been made. 26Subsection (16)(b) is not therefore a means by which the need to obtain a determination of the worker's degree of impairment and to make an application under subsection (4) can be by-passed. Rather, it provides an opportunity, where a worker's degree of impairment is assessed at less than 30 per cent, to nevertheless demonstrate by court proceedings that an injury is serious. 27It follows that subsection (16)(b) does not provide an additional exception to the prohibition in subsection (3) on the commencement of proceedings. Proceedings may not be commenced unless one of the exceptions stated in that subsection is applicable. That is not the case here. Accordingly, the proceedings were commenced in contravention of subsection (3) and should be dismissed. The respondent submitted that leave could be granted under subsection (16)(b) after the commencement of proceedings but, whether or not that be so, one or other of the steps referred to in subsection (3) was required to be, but was not, taken prior to the commencement of proceedings. This did not occur and the proceedings are of no legal effect (see for example Nassim Attileh v State Rail Authority of New South Wales [2005] NSWCA 64; 62 NSWLR 439 at [29]; compare Wilson v State Rail Authority of NSW [2010] NSWCA 198; 78 NSWLR 704 not following this decision on another point).

ORDERS 28For the reasons above, I propose the following orders: (1) Appeal allowed. (2) Set aside the orders made by Delaney DCJ dismissing the respondent's Notice of Motion and ordering that the costs of the Motion be costs in the cause. (3) Order pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 that the respondent's Statement of Claim filed in the District Court be struck out. (4) Order the respondent to pay the applicant's costs in the District Court and on appeal. (5) Grant the respondent a certificate under the Suitors' Fund Act 1951, if he is qualified. 29BARRETT JA: I agree with Macfarlan JA. 30PRESTON CJ OF LEC: I agree with Macfarlan JA.

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