Wilson v State Rail Authority of New South Wales [2010] NSWCA 198 | Case summary

Wilson v State Rail Authority of New South Wales [2010] NSWCA 198 | Case summary | Zoe

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Approach to the resolution of the controversy 8 Notwithstanding the simplicity of the question, the controversy and the appeal raise difficult and intricate questions as to the proper construction of the WC Act, the WIM Act and various Acts that amended them. The appeal also raised the correctness of some previous decisions of this Court. Thus, a five judge bench was constituted to hear the appeal. As the argument eventually fell out, only one decision of the Court was challenged, Attileh v State Rail Authority of New South Wales [2005] NSWCA 64; 62 NSWLR 439, a decision which was at the commencement of the appeal accepted to be correct by the appellant. For the reasons that follow, I would, with the utmost respect, depart from the conclusion in Attileh that causes of action for injuries received before 4 pm on 30 June 1987 are constrained by the limitations in Ch 7 of the WIM Act, at least insofar as that depends upon the phrase "work injury damages" in s 250 of the WIM Act extending to cover damages for such causes of action. Thus, Mr Wilson's claim is not precluded by any requirement for a degree of permanent impairment of 15 per cent. 9 It is essential to understand the enactment history and context of the Acts that make up the work injury damages recovery regime if one is to give proper content to any provision of a relevant Act in the development of that regime since 1987. The regime has developed over time, and not without considerable complexity. 10 I will take the course of setting out the enactment history and context before discussing the relevant provisions of the legislation in 2001 or the approach of the primary judge or the arguments of the parties. I have done so in order that the correct approach and, with respect, the errors of the learned primary judge can be understood most clearly. It will be convenient, however, from time to time, to interpolate some views in order that an unfortunately long judgment is readily understandable. 11 May I say at the outset, that the struggle with the intricate legislation was greatly assisted by the clear, succinct and helpful submissions of counsel, Mr S Campbell SC and Mr M Snell who appeared for Mr Wilson and Mr G Watson SC and Mr R Gambi who appeared for the SRA. I am very grateful for their skill and assistance. 12 I am mindful that any initial engagement with enactment history and context might be misunderstood as part of any enquiry as to the subjective intent of legislators or policy advisers so that such divined intent can be transferred to the words used by Parliament. Such an enquiry would be misdirected. It is the language of Parliament that must be interpreted and construed: Harrison v Melhem [2008] NSWCA 67; 72 NSWLR 380 at 384-385 [12]-[16] (Spigelman CJ), 398-403 [158]-[185] (Mason P), 403 [191] (Beazley JA) and 403 [192] (Giles JA). However, as is now beyond dispute, in construing an Act, a court is permitted to have regard to the words used by Parliament in their legal and historical context. Context is to be considered in the first instance, not merely when some ambiguity is discerned. Context is to be understood in its widest sense to include such things as the existing state of the law and the mischief or object to which the statute was directed. These are legitimate means of understanding the purpose of the Act and of the relevant provisions, against which the terms and structure of the provisions and the Act, and a whole, are to be understood. Fundamental to the task, of course, is the giving of close attention to the text and structure of the Act, as the words used by Parliament to effect its legislative purpose. Nevertheless, general words, informed by an understanding of the context, and of the mischief to which the Act is directed, may be constrained in their effect. The foregoing principles can be taken from the following: Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 421-424, specifically approved by the Court (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ) in Bropho v Western Australia [1990] HCA 24; 171 CLR 1 at 20; CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; 187 CLR 384 at 408 (Brennan CJ, Dawson, Toohey and Gummow JJ); Newcastle City Council v GIO General Ltd [1997] HCA 53; 191 CLR 85 at 99 (Toohey, Gaudron and Gummow JJ), 112-113 (McHugh J); Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at 381-382 [69]-[71] and 384 [78] (McHugh, Gummow, Kirby and Hayne JJ); Astley v Austrust Ltd [1999] HCA 6; 197 CLR 1 at 23 [49] (Gleeson CJ, McHugh, Gummow and Hayne JJ); Eastman v Director of Public Prosecutions of the Australian Capital Territory [2003] HCA 28; 214 CLR 318 at 322 [1] (Gleeson CJ agreeing with Heydon J) 330 [32] (Gummow J agreeing with Heydon J), 331 [34] (Kirby J agreeing with Heydon J), 331 [35] (Hayne J agreeing with Heydon J), 331 [36] (Callinan J agreeing with Heydon J) and 368 [140] and fn 99 (Heydon J); Network Ten Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14; 218 CLR 273 at 280-281 [10]-[11] (McHugh ACJ and Gummow and Hayne JJ), 305-306 (Kirby J, in dissent, though not in expression of principle); Minister for Immigration and Citizenship v SZJGV [2009] HCA 40 at [8]-[9] (French CJ and Bell J), [47]-[48] (Crennan and Kiefel JJ), cf [19]-[20] (Hayne J), though compare Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41 and Saeed v Minister for Immigration and Citizenship [2010] HCA 23 at [33]-[34]; and see also the Interpretation Act 1987 (NSW), ss 33 and 34. 13 Particularly relevant to the task at hand, in this appeal, is what was said by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky at 381-382 [69]-[71]: "[69] The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute [See Taylor v Public Service Board (NSW) [1976] HCA 36 ; 137 CLR 208 at 213 per Barwick CJ]. The meaning of the provision must be determined 'by reference to the language of the instrument viewed as a whole' [ Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26 ; 147 CLR 297 at 320 per Mason and Wilson JJ. See also South West Water Authority v Rumble's [1985] AC 609 at 617 per Lord Scarman, 'in the context of the legislation read as a whole'.) In Commissioner for Railways (NSW) v Agalianos [ [1955] HCA 27 ; 92 CLR 390 at 397], Dixon CJ pointed out that 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed'. Thus, the process of construction must always begin by examining the context of the provision that is being construed [ Toronto Suburban Railway Co v Toronto Corporation [1915] AC 590 at 597; Minister for Lands (NSW) v Jeremias [1917] HCA 41; 23 CLR 322 at 332; K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48 ; 157 CLR 309 at 312 per Gibbs CJ, 315 per Mason J, 321 per Deane J].

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[71] Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision [ The Commonwealth v Baume [1905] HCA 11 ; 2 CLR 405 at 414 per Griffith CJ, 419 per O'Connor J; Chu Kheng Lim v Minister for Immigration [1992] HCA 64 ; 176 CLR 1 at 12-13 per Mason CJ]. In The Commonwealth v Baume [ [1905] HCA 11 ; 2 CLR 405 at 414] Griffith CJ cited R v Berchet [(1690) 1 Show KB 106; 89 ER 480] to support the proposition that it was 'a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent'." (emphasis added) 14 Also relevant to the task at hand is what was said by Mason J in K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48; 157 CLR 309 at 315. Though his Honour was in dissent, the following passage can be taken to have been expressly approved by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky at 381 at fn 48: "… The modern approach to interpretation insists that the context be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity might be thought to arise. In Prince Ernest Augustus of Hanover, Viscount Simonds said [[1957] AC 436 at 461]: ' ... words, and particularly general words, cannot be read in isolation: their colour and content are derived from their context. So it is that I conceive it to be my right and duty to examine every word of a statute in its context, and I use "context" in its widest sense ... as including not only other enacting provisions of the same statute, but its preamble, the existing state of the law, other statutes in pari materia, and the mischief which I can, by those and other legitimate means, discern the statute was intended to remedy.' In Re Bidie [[1949] Ch 121 at 130], Lord Greene M.R. said: 'In the present case, if I might respectfully make a criticism of the learned judge's method of approach, I think he attributed too much force to what I may call the abstract or unconditioned meaning of the word "representation". ... The real question which we have to decide is, what does the word mean in the context in which we find it here, both in the immediate context of the sub-section in which the word occurs and in the general context of the Act, having regard to the declared intention of the Act and the obvious evil that it is designed to remedy.' The instances of general words in a statute being so held to be constrained by their context are legion: e.g. Ross v The Queen [[1979] HCA 29; 141 CLR 432 at 440] and the cases collected in Cross, Statutory Interpretation (1976), pp. 44-56." 15 For reasons that will become apparent, the crucial statutes to understand are those passed in 2001, being the Workers Compensation Legislation Amendment Act 2001 (NSW), Act No 61 of 2001 (the "First 2001 Amending Act"), enacted in July 2001 and the Workers Compensation Legislation Further Amendment Act 2001 (NSW), Act No 94 of 2001 (the "Second 2001 Amending Act"), enacted in November 2001. To understand the purpose of those crucial Acts, and the mischief to which they were directed, one needs to appreciate, however, the statutory changes that had taken place since 1987 to the law concerning compensation (using that term generally) for injuries that occurred in the workplace. This understanding is to be obtained from an examination of the relevant statutes since 1987, from relevant case law, from the relevant Second Reading Speeches in Parliament in 2001 and from an important inquiry in 2001 led by the Hon Justice Terry Sheahan (then a Judge of the Land and Environment Court, and a former Attorney-General of New South Wales). I will refer to the inquiry as the "Sheahan Inquiry". The undertaking and terms of reference of the Sheahan Inquiry were known by Parliament at the time of the passage of the Bill that became the First 2001 Amending Act. The report of the Sheahan Inquiry (to which I will refer as the "Sheahan Report") was dated 31 August 2001 and was before Parliament in November 2001 and parts of it were referred to in the Second Reading Speeches to the Bill that became the Second 2001 Amending Act. 16 The history of the changes from 1987 are set out in a number of cases: for example, Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; 225 CLR 364 at 384-385 [72]-[74] per Kirby J; Pye v Butterfield Cheese Factors Pty Ltd (1996) 39 NSWLR 425 at 427 ff; Kimberley-Clark Australia Pty Ltd v Thompson [2006] NSWCA 264; 67 NSWLR 187; and Wattyl Australia Pty Ltd v McArthur [2008] NSWCA 326; 74 NSWLR 229.

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151E (1) This Division applies to an award of damages in respect of: (a) an injury to a worker; or (b) the death of a worker resulting from or caused by an injury, being an injury caused by the negligence or other tort of the worker's employer. (2) This Division does not apply to an award of damages to which Part 6 of the Motor Accidents Act 1988 applies. General regulation of court awards 151F A court may not award damages to a person contrary to this Division." 23 Section 151G, as introduced in the 1989 Amending Act, provided for damages for non-economic loss if the worker's ability to lead a normal life had been significantly impaired. A regime for identifying that impairment was provided for (otherwise than by medical assessment). The amount of damages to be awarded was a proportion, determined as to the severity of the non-economic loss, of the maximum amount that could be awarded (initially $180,000) in a most extreme case. A threshold of $45,000 was set originally. 24 Section 151H, as introduced by the 1989 Amending Act, dealt with economic loss. No damages were to be awarded for economic loss unless the worker died or received a "serious injury": s 151H(1). A "serious injury" was defined by s 151H(2) as one for which not less than 33 per cent of the maximum amount was payable under s 66 (the table of maims) or for which non-economic damages were at least $60,000. The definition of "serious injury" was slightly different for injuries received before 4 pm 30 June 1989 (and implicitly after 4 pm 30 June 1987) whereby the percentage in s 151H(2) was 60 per cent, and not 33 per cent, and the sum in s 151H(2) was $100,000, and not $60,000: s 151H(3). 25 Division 4 of Pt 5 of the WC Act introduced by the 1989 Amending Act was entitled "Retrospective restoration of modified common law". Section 151U (in Division 4) was in the following terms: " Modified common law to apply from 30 June 1987 151U (1) This Part applies to a cause of action in respect of: (a) an injury received by a worker at or after 4 pm on 30 June 1987; or (b) the death of a worker resulting from or caused by such an injury. (2) This Part has effect as if sections 149 and 150, as originally enacted, had never been enacted." 26 The 1989 Amending Act also amended Pt 14 of Sch 6 to the 1987 WC Act, by omitting cl 1(1) (set out at [17] above) and inserting instead: "(1) Part 5 of the Act (except section 151AA) does not apply to a cause of action in respect of: (a) an injury received by a worker before 4 pm on 30 June 1987; or (b) the death of a worker resulting from or caused by such an injury."

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(Section 151AA, which did apply to causes of action in respect of injuries before 4 pm on 30 June 1987, concerned the abolition of the doctrine of common employment.) 27 Section 151U and Pt 14 of Sch 6 remain in the WC Act and were not expressly addressed or amended by any provision of the amending Acts in 2001. 28 What was therefore pellucid in 1989 was that (with the exception of the doctrine of common employment) none of the changes to the regime for common law damages for employment injuries in 1987 to 1989 touched the recovery of damages at common law for causes of action in respect of employment injuries received by a worker before 4 pm on 30 June 1987. Two regimes therefore existed - "pure" common law for causes of action in respect of injuries that occurred before 4 pm 30 June 1987 and "modified" common law damages for causes of action in respect of injuries received after that time and date. 29 Both the context and the significance of these changes in 1987 to 1989 was summarised by Allen J in Leonard v Smith (1992) 27 NSWLR 5 at 6-7, as follows: "Over recent years economic pressures have led to the legislature substantially reducing damages recoverable by an accident victim in two circumstances. The first is where the accident came within the ambit of Workers Compensation legislation, thereby giving to the victim the benefit of the statutory scheme of compulsory insurance by employers. The second is where the injury was suffered in a motor vehicle accident in such circumstances as to entitle the victim to the benefit of the statutory scheme of compulsory third party insurance. In each of these instances there has been a severe curtailment in the damages which otherwise would have been recoverable from the negligent employer or the negligent motor vehicle owner or driver as the case may be. The reduction is more draconic in the case of the damages recoverable from a negligent employer than in the case of the damages recoverable from the negligent owner driver of a vehicle. Indeed the Workers Compensation Act 1987 as originally enacted precluded recovery of damages from a negligent employer. That was recognised as going too far and amendments to that Act have restored the right to recovery of damages - albeit at a level far below the damages which would have been recoverable but for the Workers Compensation legislation. These reduced damages so recoverable are called 'modified common law damages'. It is in the realm of general knowledge, quite apart from what was stated in the Parliament in the course of the relevant debates, that what has brought about this retreat from the high water mark of the common law and its principle of complete restitution is economic necessity. It was considered by the legislature that the financial burdens upon the insurers had become unsustainable. The price to be paid for retention of the very real practical benefits of the statutory insurance schemes was reduction in the amount of damages otherwise recoverable at common law. This necessarily involved the acceptance of damages less in amount than what was needed to make full restitution to the victim." 30 The juridical character of these changes was discussed in Berowra Holdings at 373 [23] by Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ: "[23] … It may be said at the outset that the scheme contained in Pt 5 of the 1987 Act does not represent an instance of a statutorily created right which is subject to an inherent limitation or qualification going to the nature of the right of the kind referred to in the passage cited previously from Mewett [ [1997] HCA 29 ; 191 CLR 471 at 534-535]. The right is sourced in common law. The approach of the courts has consistently been to require very clear legislative intent before treating a statutory provision as taking away common law rights of a plaintiff, where there is an alternative construction available [ Sargood Bros v Commonwealth [1910] HCA 45 ; 11 CLR 258 at 279 per O'Connor J; Pyneboard Pty Ltd v Trade Practices Commission [1983] HCA 9 ; 152 CLR 328 at 341 per Mason ACJ, Wilson and Dawson JJ]…" 31 This passage is important to bear in mind in approaching the task of statutory construction of the WC Act and the WIM Act after the introduction of the First and Second 2001 Amending Acts. Whilst the passage is important in this context, it should also be recognised that the terms of ss 151E and 151F and the restrictions in ss 151G and 151H and otherwise in Pt 5 of the WC Act made it a legitimate and meaningful use of language to speak of the recovery of modified common law damages under the WC Act.

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Funding of statutory and common law claims 32 Apart from the important provisions concerning the modification of common law rights of recovery by the worker against his or her employer, the legislation was directed to the funding of, and insurance for, common law claims and workers compensation. 33 A general licensing scheme had existed under the Workers Compensation Act 1926 (NSW), with the introduction of compulsory workers compensation insurance for employers (s 18(1)) and the requirement that insurers obtain a licence to carry on the business of insurance of employers against workers compensation liability (ss 27-29). 34 The significant reform brought about by the 1987 Act was the establishment of the managed fund scheme. Licensed insurers no longer managed and expended their own funds. Instead, the insurers were required to establish and maintain a statutory fund in respect of policies of insurance issued or renewed by the insurer, into which all premiums were paid: ss 195 and 196(1). Overall management of the funds was vested in the State Compensation Board. Fund moneys could only be applied for the purposes contained in s 197, one such purpose being "meeting claims under the policies of insurance in respect of which the statutory fund is maintained": s 197(1)(a). The regulations under the WC Act required that policies of insurance include a provision indemnifying employers not only for statutory workers compensation claims but also for any liability arising independently of the Act, ie at common law (except for the original 1987 regulations which did not because of the removal of common law claims - but this was retrospectively amended to include common law liability in 1989). In other words, fund moneys were applied to meet claims under the relevant insurance policies, both statutory and common law. This would appear to include claims relating to injuries received before 4 pm on 30 June 1987, which were preserved by Sch 6 of the 1987 Act and were dealt with under the provisions of the 1926 Act. 35 The 1989 amendments brought further changes to the scheme. The WorkCover Administration Act 1989 (NSW) established the WorkCover Authority to administer the scheme. The Authority commenced operation on 1 January 1990 and replaced the State Compensation Board. The 1989 Amending Act provided for retrospective restoration of modified common law claims in s 151U. It also provided for the retrospective extension of insurance policies issued or renewed under the 1987 Act before the commencement of the amendments to cover an employer's liability independent of the Act.

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The 2001 amendments 41 By 2001, significant difficulties were perceived with the operation of the legislation in the field of personal injuries in the workplace. These difficulties were related to the cost of claims - both statutory and common law which were being paid through the managed fund scheme. 42 The history of the introduction in 2001 of legislation amending the WC Act and the WIM Act was turbulent. The first step was taken in March. This first step and events up to June were described by the Minister in the Legislative Assembly on 19 June 2001 in the Second Reading Speech to the Bill that became the First 2001 Amending Act as follows: "In March of this year the Government introduced the Workers Compensation Legislation Amendment Bill. The Government's primary objective in reforming the scheme is to prevent disputes arising and to provide a simpler, fairer, faster system for resolving disputes in the workers compensation system. … That said, the current scheme lets these stakeholders down . For employees there are too many disputes and too many delays in the system. Of all major claims, 45 per cent result in a dispute even though this is meant to be a no-fault system. As a consequence, injury management for workers is delayed, along with the payment of compensation. For employers, the high rate of disputes results in higher premiums. The Government is of the view that far too much of the premium collected is being spent resolving disputes. When the Workers Compensation Legislation Amendment Bill was introduced the Government made clear its intention to consult with stakeholders, including the Workers Compensation and Workplace Occupational Health and Safety Council, and the Labor Council of New South Wales. I am pleased today to introduce the Workers Compensation Legislation Amendment Bill (No 2). The bill represents the outcome of that consultation process. It achieves the Government's objective of ensuring a simpler and fairer dispute resolution system that protects the rights and entitlements of injured workers. The revised bill includes significant changes that have come out of the consultation process with the New South Wales Labor Council and employer groups." (emphasis added) 43 The Bill to which the Minister was speaking (which became the First 2001 Amending Act) no longer dealt (as the first Bill had) with Pt 5 of the WC Act. 44 In the Legislative Council, the Minister directly responsible for the portfolio, the Hon John Della Bosca, spoke of the "current scheme" in a way clearly directed to the post-1989 regime. He recognised that further legislation dealing with thresholds and the like may eventuate after the Sheahan Inquiry, that had been established on 6 June and publicly announced, had finished its work. On 26 June 2001, he said: "Although the current system is meant to be objective, awards for similar injuries can vary widely. The guidelines, using scientific evidence, seek to ensure a greater degree of consistency in decision making. I do not propose to revisit the detail of the proposals; however, the following specific matters should be noted. First, the bill provides that WorkCover will be required to issue guides to assess the degree of permanent impairment, rather than simply relying on the AMA guides . The guides are currently being developed through a consultation process involving eminent medical practitioners, including a number nominated by the Labor Council. The work of these groups is overseen by a consistency group that also includes representatives of the Labor Council. The Government remains firmly committed to continuing this process, particularly the close involvement of the New South Wales Labor Council. The guidelines will also be subject to disallowance by Parliament and this will ensure appropriate scrutiny. The Government has also committed that any proposed changes to the guidelines in future will require scrutiny by the advisory council and medical representatives of the Labor Council. Second, much has been said about whether it is appropriate to prescribe by regulation the compensation formulas under section 66 and the proposed thresholds under sections 65A and 67. The Government recognises that it would be preferable to include these matters in the principal legislation. In view of the long lead time for implementing this legislation, particularly in relation to the establishment of the commission, the Government needs to have the framework passed so that work can get under way to establish the system. Work on the guidelines will continue however if the legislation is passed. Once the formulas and thresholds have been determined, the Government will move in the following parliamentary session to amend the Workers Compensation Act 1987 to reinsert these matters into the principal legislation so that they cannot be altered by regulation in the future. Third, comment has been made that by proceeding with the bill at the current time the existing common law thresholds will be affected. This is incorrect. The current bill does not affect the so-called monetary or narrative gateway to access common law. This will remain in place until such time as legislation, if indeed any does arise, to implement recommendations of the Sheahan inquiry commences. … Fifth, it has been suggested to the Government that the transitional provisions contained in the bill will allow regulations to be made that can retrospectively change benefits for lump sum compensation. The bill is retrospective as to process but not in relation to benefit levels. Benefits for permanent loss or impairment will be calculated according to the law in force at the date of injury. This is made clear by clause 3 (1) at page 27 of the bill. It is not the intent of the legislation to confer a regulation-making power on government that could be used retrospectively to apply changes to benefit structures." (emphasis added) 45 In July 2001, the Parliament enacted the First 2001 Amending Act. A description of its purpose was given on 28 November 2001 by the relevant Minister in the Second Reading Speech to the Bill that became the Second 2001 Amending Act. He said: "In July this year Parliament enacted the [First 2001 Amending Act]. Its primary objective was to put in place measures to prevent disputes arising and to provide a simpler, fairer and faster system for resolving disputes in the workers compensation system. This legislation was a vital stage of the Government's overall reform program for workers compensation in New South Wales which was announced in June 2000. The Government's July 2001 legislation addressed issues with dispute resolution in relation to claims under the statutory scheme. It did not significantly address claims by injured workers for damages at common law and concerns in relation to both the increasing numbers and costs of such claims. As honourable members would be aware, measures to amend common law arrangements were included in the Government's March 2001 bill but were subsequently removed from the successor to that bill, the [First 2001 Amending Act]. In May this year the Government agreed with the Labour Council and the Workers Compensation and Workplace Occupational Health and Safety Council - referred to as the council - that there would be further consultation in relation to those areas of particular concern in the March bill, namely benefit entitlements for permanent loss, common law entitlements and the proposed claims assessment service." (emphasis added) 46 As the Minister stated, after the changes to common law recovery were removed from the first Bill in 2001, a consultation process was undertaken and the Sheahan Inquiry was established. This was described in the Second Reading Speech to the above November 2001 Bill as follows: "A extensive consultative process involving many meetings between the Government, WorkCover and the Labor Council resulted in agreement being reached on most points, with the previously proposed claims assessment service being replaced by a Workers Compensation Commission. The [First 2001 Amending Act] subsequently established the commission as well as introducing the use of permanent impairment assessment guidelines. All parties to the consultation process agreed that the amendments relating to common law should be deferred whilst an independent inquiry was carried out. The Government appointed the Hon. Justice Terry Sheahan of the Land and Environment Court to conduct the inquiry into the common law issues." (emphasis added) 47 The Sheahan Inquiry was commissioned under Letters Patent dated 6 June 2001, the terms of reference being expressed as follows: "1. to recommend the appropriate threshold for 'serious and permanent injury' necessary to recover damages at common law in the WorkCover scheme, consistent with the available measures of impairment in the statutory workers compensation scheme, and maintaining access to common law claims under the [WC Act] and [WIM Act] for seriously injured workers; and 2. to examine more efficient ways to process common law claims under the [WC Act] and [WIM Act]; and 3. to identify ways to reduce unnecessary costs and inefficiencies in the processing of common law claims under the [WC Act] and the [WIM Act] ; and 4. to identify ways to reduce the incentive for pursuing common law claims under the [WC Act] and the [WIM Act]." (emphasis added) 48 It is to be noted that the subjects of the inquiry were the various aspects of the "common law claims under the [WC Act] and the [WIM Act]", their cost and inefficiencies. This was, in terms, a reference to common law claims in respect of injuries received after 4 pm on 30 June 1987. The terms of reference, identifying as they do the parameters of the mischief, were not directed at all to the subject of causes of action for injuries received before the above time and date. 49 The financial and political reality behind the desire for change and a reduction in cost of common law claims under the WC Act and the WIM Act was described in the Sheahan Report, the Second Reading Speeches for the Bill that became the Second 2001 Amending Act, and the Second Reading Speeches for the Bill that became the First 2001 Amending Act. 50 In a section entitled "The subject matter of the Inquiry", the Sheahan Report stated at pp 2-3: "In recent years the availability of 'common law' rights, remedies, and damages against one's employer, albeit subject to statutory limitations, has been targeted as a major and unjustifiable source of economic pressure on the relevant 'insurance' scheme, and the so-called 'deficit' of the NSW scheme , foreshadowed first by actuarial assessments of the scheme in 1993 and 1994, has become a major issue of contention in the public arena." (emphasis added) 51 The Second Reading Speeches dealt with the same issues. In the Legislative Assembly in November, the Minister said: " The inquiry was asked to consider and make recommendations on an appropriate threshold for recovery of common law work injury damages, to develop incentives to reduce the number of common law claims made and to recommend ways to make the processing of common law matters more efficient. The inquiry was conducted in a highly consultative manner and this is specifically recognised in the report. This included an expert reference group made up of employer, employee and government representatives. The inquiry was conducted against the background of the scheme's significant and growing deficit, which was $2.18 billion as at December 2000 and which has since further deteriorated to just over $2.75 billion as at June 2001." (emphasis added) 52 What is important to appreciate is that the growing costs of the common law claims related to both the level of verdicts and the costs of litigation which were affecting the funding of the managed scheme. The Minister then went on to explain that the Bill (which became the Second 2001 Amending Act) was directed in two principal ways to reducing the costs of common law claims: (1) raising the thresholds for common law claims and at the same time improving statutory benefits; and (2) improving processes for the making of common law claims to reduce their costs. 53 The Second Reading Speech in November referred to the costs pressure on the current system and these two principal aims of the changes by the Bill that became the Second 2001 Amending Act: "It is worth putting the impact of common law claims and their high transaction costs in perspective. Each year in New South Wales of the approximately 160,000 workers who lodge claims for workers compensation, the great majority - 140,000 - recover fully and do not suffer any permanent physical or mental loss as a result of their injury. Approximately 80,000 claims are for medical expenses only, that is, the worker does not take any time off work. A further 30,000 claims are for periods of less than five days away from work, and in a further 30,000 claims, the worker is absent for more than five days, but does not suffer permanent impairment. Of the 20,000 workers suffering a permanent impairment and qualifying for common law or non-economic loss benefits, the majority have less serious losses. The report of the inquiry notes at page 4: If the common law component of the scheme continues to expand, the funds available for the statutory benefits required by the overwhelming majority of injured workers must reduce, thus putting more pressure on those workers to seek a common law option, or a commutation of life-long statutory benefits. To address this imbalance, the inquiry recommended a single threshold of the 20 per cent permanent impairment. The report of the inquiry explicitly rejects the proposition that only the workers with most serious and permanent injury - often referred to as catastrophic injury - should be entitled to recover damages. Rather, the inquiry took the view on the evidence presented that a threshold of 20 per cent would allow a broader class of workers to have access to a common law remedy. However, after consultation with the Labor Council the Government has accepted the view that with the abolition of the second gateway, a lower threshold of 15 per cent is appropriate. The bill gives effect to this commitment. When there is a dispute as to the degree of permanent impairment of an injured worker, the dispute must be referred to an approved medical specialist [AMS], who will issue a conclusive medical certificate. The decision of the AMS will be appellable to an appeal panel consisting of two AMSs and an arbitrator. As also recommended by the inquiry, schedule 1.1 to the bill provides that the recovery of common law damages will be restricted to damages for past economic loss due to loss of earnings and damages for future economic loss due to the deprivation or impairment of earning capacity. As to damages for non-economic loss, the report of the inquiry recommends that all such claims should be available only through the statutory scheme. Schedule 1.1, therefore, provides for the abolition of the existing entitlement to recover common law damages for non-economic loss such as pain and suffering. As a consequence of damages for lost earnings only being recoverable at common law, and as recommended by the inquiry, schedule 1.1 also repeals the current requirement to choose or elect between statutory non-economic loss compensation under sections 66 and 67 of the 1987 Act or common law damages. … The second group of measures , as contained in schedule 1.2, gives effect to the common law inquiry recommendations relating to improved processes for common law claims. The report of the inquiry observed from evidence presented that common law claims were more than twice as expensive to process compared to statutory benefit claims. The report also noted and accepted that the financial position of the scheme required that savings be made, and in Justice Sheahan's view, 'savings must and can be found among the transaction costs associated with the common law component of the scheme …'. Accordingly, the bill adopts the inquiry recommendation that a pre-litigation process be introduced for common law work injury damages claims. The pre-litigation process proposed by the bill requires the parties to exchange information early, respond promptly to offers of settlement and, where possible, settle matters without the necessity of filing proceedings in the court. The Government is adopting all of the recommendations made by the common law inquiry in relation to the processing of common law claims, with only one minor addition, that is, to provide for a worker to give an early indication to the insurer of allegations of negligence. This will enable the insurer to be in a position to respond to the claim within 28 days. The Government proposes, in view of the current extreme escalation of claim numbers for common law claims and the urgent need to curb costs, that no further claims under the current system be permitted other than those claims that have been filed at the date of the introduction of the bill into Parliament. This step has been taken in order to prevent a further strain being placed on the scheme's financial position. Claims are currently being filed at the rate of 500 per month." (emphasis added) 54 One important aspect of the procedural changes discussed in these last two paragraphs of the Second Reading Speech directed to the "second group of measures" was the aim to cut off common law claims "under the current system" by reference to filing at the date of the introduction of the Bill into Parliament (28 November 2001, being the very day of the Second Reading Speech). That reference point, the commencement of filing of the common law proceedings, assumes some importance in the language of the Second 2001 Amending Act and in the argument in this Court. It is sufficient to notice, at this point, that the terms of reference of the Sheahan Inquiry, the terms of the Sheahan Report and the terms of the Second Reading Speech to the Bill that became the Second 2001 Amending Act, were all directed to common law claims under the WC Act and the WIM Act or to the "current scheme", being that established in the WC Act by the 1989 Amending Act, the operation of which was amended from 1998 by the WIM Act. 55 No part of the perceived or identified mischief was the cost or burden of common law claims that had been excluded in the clearest express terms from the operation of that scheme by s 151U of, and Pt 14 of Sch 6 to, the WC Act. 56 No part of any available secondary material reveals any mischief or problem necessary to be solved by reference to claims for injuries received before 4 pm on 30 June 1987. 57 No part of any available secondary material reveals any need or desire or purpose to abolish the clear distinction made in the 1989 Amending Act between injuries received before and after 4 pm on 30 June 1987 or to alter, in any way, the rights of persons who received injuries before that time and date. Their common law claims or their rights could not be said to be "under" the WC Act or the WIM Act (as referred to in the terms of reference of the Sheahan Inquiry) or to be "under the current system" (as referred to in the Second Reading Speech to the Bills that became the First and Second 2001 Amending Acts). 58 The above is not undermined in any way by a recognition that the cost of pre-30 June 1987 injury common law claims may have also fallen on the fund. By 2001, they can be taken to have been few in number. They were not part of the expressed mischief. 59 Before turning to the terms of the First and Second 2001 Amending Acts, it is necessary to deal with one complicating factor concerning this secondary material. 60 The 2001 legislation was enacted in two tranches. Important parts of it were enacted in July 2001 in the First 2001 Amending Act. Most importantly in this respect, Ch 7 of the WIM Act, including the definition of the phrase "work injury damages" in s 250 was enacted in the First 2001 Amending Act. However, much of the relevant operation of the First 2001 Amending Act did not come into force until 1 January 2002 by proclamation made on 19 December 2001 (published in Gazette No 195A of 21 December 2001 p 10175). An earlier proclamation dated 3 October 2001 (published in Gazette No 152 of 5 October 2001 p 8487) appointed 5 October 2001 as the day of commencement of some provisions of the First 2001 Amending Act. 61 No provision relevant to the resolution of the construction issues in this appeal commenced before 1 January 2002. The only provisions of the First 2001 Amending Act that commenced on 5 October 2001 were those that inserted the heading to Ch 7 and Pt 10 of Ch 7 dealing with administration.

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75 The word "claim" was defined in the WIM Act, s 4 as meaning: "a claim for compensation or work injury damages that a person has made or is entitled to make". 76 The word "claimant" was defined in s 4 as meaning: "a person who makes or is entitled to make a claim." 77 The word "compensation" was defined in s 4 as meaning: "compensation under the Workers Compensation Acts [defined as the WC Act and the WIM Act], and includes any monetary benefit under those Acts." 78 A number of things need be noted about these definitions that are important considerations when coming to piece together the meaning, content and limits of the new regime brought about in 2001. First, the definition of "existing claim" in s 250 was changed in important respects in the Second 2001 Amending Act from the First 2001 Amending Act. In the First 2001 Amending Act the phrase "existing claim" was defined as meaning: "(a) a claim for compensation made before the commencement of this section or a claim that is related to such a claim (whether or not the related claim is made before the commencement of this section), or (b) a claim for work injury damages made in respect of an injury received before the commencement of this section or in respect of the death of a worker resulting from or caused by such an injury." 79 This definition encompassed claims for both (statutory) compensation and common law damages (being for "work injury damages"). The discrimen in relation to the latter was the date of the injury (before the commencement of the section). This definition never commenced before its amendment by the Second 2001 Amending Act. Chapter 7 commenced (except the chapter heading and Pt 10) on 1 January 2002, to the extent that it was not amended by the Second 2001 Amending Act. 80 The later definition of "existing claim", introduced by the Second 2001 Amending Act, was restricted to claims for (statutory) compensation that were made before the commencement of the section. 81 Secondly, the First 2001 Amending Act provided for a definition of "new claim" in s 250 of the WIM Act as meaning "any claim that is not an existing claim". The Second 2001 Amending Act made a change necessary to accommodate the fact that "new claim", as any claim that is not an existing claim, included all claims for work injury damages (whether already made or not). So, under the definition of "new claim" there was encompassed claims for (statutory) compensation made after the commencement of the section and (all) claims for work injury damages, whether made before or after the commencement of the section. 82 Thirdly, the phrase "new claim matter" was introduced into s 250 by the Second 2001 Amending Act. Such a matter was limited to one arising under the WC Act and the WIM Act. 83 Fourthly, the phrase "work injury damages" was introduced by the First 2001 Amending Act. It was as set out at [73] above. It was general in its terms. It had no limitation by reference to the date of receipt of any injury. It will become crucial to the resolution of this appeal to understand the proper limits of the phrase "work injury damages". The operative definitions that include the word "claim" and many important provisions utilise the definition. For the reasons that are set out later, in my view, its meaning when placed into the relevant provisions of Ch 7 and into other defined terms that then operate in Ch 7, understood by its statutory purpose and context and by the text and structure of the legislation, is limited to injuries received after 4 pm 30 June 1987. 84 The only other section in Ch 7 Pt 1, s 251, is in the following form inserted by the Second 2001 Amending Act : "251 Application of Chapter

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notified injury means an injury to a worker notified to an insurer." 91 As will be seen in due course, these are important provisions. Section 259 may be a provision "otherwise specifically providing" for the purposes of s 251. There was a nascent disagreement in this Court in Attileh about this. Its importance is readily apparent. If s 259(1) does "otherwise specifically provide" (as in my view it does, for reasons set out later), it is the basis for the whole of Div 2 of Pt 2 of Ch 7 (including ss 260, 261 and 263) to apply to a claim for "work injury damages" and if Mr Wilson's claim is one for "work injury damages", the Division will apply of its own force to his claim and his proceedings. 92 Section 260, which provided for how a claim for (statutory) compensation or work injury damages was to be made, is important, because the restrictions said to affect Mr Wilson's claim were (subject to the concession made in argument by Mr Watson SC) asserted to flow from WorkCover Guidelines promulgated under s 260(2). Also, to the extent that s 260(1) refers to "applicable" requirements and that s 260(5) excuses the failure to make a claim as required for "other reasonable cause", these may be of significance to certain subsidiary arguments put on behalf of Mr Wilson. 93 Section 261 provided for a six month time limit for the making of a claim for (statutory) compensation. 94 Section 262 prohibited the commencement of court proceedings for recovery of work injury damages until a claim for damages was made. A claim for damages was governed by s 260, including compliance with the Guidelines. 95 Part 3, which was largely introduced by the First 2001 Amending Act concerned dealing with claims. Division 1 concerned special provisions for the commencement of weekly compensation after initial notification of injury. Division 2 concerned claims for weekly compensation. Division 3 concerned claims for medical expenses. 96 Division 4 of Pt 3 concerned claims for lump sum compensation and work injury claims. Section 280A in Div 4 was introduced by the Second 2001 Amending Act and is in the following terms:

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The decision of this Court in Attileh 133 Mr Attileh (the appellant) commenced proceedings in the District Court against the SRA (the respondent) which was his former employer. He had a claim in negligence for industrial deafness said to stem from employment between 1969 and May 1985 with the SRA. He had obtained leave to proceed pursuant to the Limitation Act 1969 (NSW). Thus, Mr Attileh's cause of action was in respect of an injury received prior to 4 pm on 30 June 1987. 134 The leading judgment was given by Mason P, with whom Santow JA and Tobias JA agreed. Tobias JA made confirmatory additional comments. 135 The difficulty faced by Mr Attileh was that he had complied with none of the procedural requirements stipulated in Div 2 of Pt 2 of Ch 7 of the WIM Act. His proceedings had therefore been struck out by the District Court Judge who heard the summary disposal application. The Court of Appeal dismissed the appeal. 136 It is necessary to understand what was argued in the case and how the arguments arose. This is so because Mr Campbell does not challenge the reasoning of the Court in Attileh. Rather, he says that a fundamental and critical assumption was made by the Court that was not the subject of argument or challenge: that Mr Attileh's claim was one for "work injury damages", within the definition in s 250 of the WIM Act. Before this Court, he challenged that assumption and submitted that, though not express in s 250, the "injury" to which reference is made in that definition is an injury received by the worker after 4 pm on 30 June 1987. 137 The primary submission initially put on behalf of Mr Attileh was that s 259(1) of the WIM Act did not apply because there was no obligation to comply with Div 2 of Pt 2 of Ch 7 of the WIM Act as the injury related to events prior to 30 June 1987. This argument proceeded on the basis of the possibility of Div 2 of Pt 2 applying directly by its own terms. This primary argument can be seen to rest on an assumption identical to that now challenged by Mr Campbell on behalf of Mr Wilson. 138 Mason P recorded the history of the changes to the WC Act and at [6]-[10] of his reasons identified the matters that were common ground between the parties, which included at [10] that Mr Attileh's right to seek damages was not subject to the operation of Pt 5 of the WC Act. This is not common ground in the present appeal. As I have already indicated, and as will be explained shortly in dealing with Mr Watson's arguments, the SRA has contended that Mr Wilson was subject to the 15 per cent threshold in Pt 5, because of the operation of Ch 7 of the WIM Act and its effective repeal of s 151U of, and Pt 14 of Sch 6 to, the WC Act in relation to causes of action for pre-1987 injuries if proceedings had not been commenced by 27 November 2001 or 1 January 2002. So, the correctness of the conclusion in [10] of Mason P's reasons (albeit partly based on a concession) that Mr Attileh's claim was not subject to the caps and election procedures in Pt 5 of the WC Act, is effectively challenged by the SRA; Mr Wilson, on the other hand, challenges the conclusion that cl 8 of Pt 18C of Sch 6 to the WC Act applies to a cause of action in respect of an injury received before 4 pm on 30 June 1987. 139 The SRA also submitted that Mr Attileh's right to commence proceedings after 1 January 2002 in relation to pre-1987 injuries was subject to the mandatory procedural prerequisites in Ch 7, Pt 2, Div 2 of the WIM Act. Mr Attileh, on the other hand, submitted that those requirements were confined to claims with respect to injuries suffered after 4 pm on 30 June 1987. 140 The argument in Attileh initially focused upon the proper interpretation of s 259(1) of the WIM Act, and in particular upon the parenthetical clause within s 259(1) "(even if the injury was received before the commencement of this section)". The SRA in Attileh submitted that the parenthetical clause was general in its effect and did not draw or permit any distinction between injuries before or after 30 June 1987. Mr Attileh submitted that the generality of the language must be read down so as to exclude causes of action relating to injuries received before 30 June 1987 invoking Maxwell v Murphy [1957] HCA 7; 96 CLR 261 at 267 and the substantive purpose of the WIM Act. 141 Mason P at [17] ff examined the general scheme of Div 2. Within that discussion, at [20], Mason P said that Mr Attileh's claim was for "work injury damages", being the phrase defined in the WIM Act, s 250. That was not the subject of argument. 142 Mason P at [27] said that s 262 of the WIM Act was fatal to the appellant's proceedings, if it was applicable to him (no claim under s 260 having been made by him). At [30] and [31], his Honour noted that if Div 2 applied generally with respect to Mr Attileh's proceedings, then those proceedings were required to be summarily dismissed, because they were not preceded by Mr Attileh making a claim for damages (as provided for in s 260), as required by s 262. The President also noted the SRA's argument that to the extent Ch 7 applied generally there were difficulties for Mr Attileh by reason of s 280A and Pt 6 of Ch 7 of the WIM Act. 143 At [32]-[34], Mason P noted that there was nothing in Div 2 that made its provisions incapable of being complied with by a claimant for work injury damages who only sought common law damages confined to injuries received prior to 4 pm on 30 June 1987. Mason P recognised that Ch 7 imposed additional hurdles upon all claimants who had not commenced proceedings by 1 January 2002. His Honour thought that it was the scheme and purpose of Ch 7 to delay institution of court proceedings until insurers had proper opportunities to assess claims and have them mediated. Mason P referred to aspects of the Minister's Second Reading Speech introducing the Bill that became the First 2001 Amending Act (to which I have also referred to above) that emphasised its procedural intent. Mason P said at [35]: "… It was described as containing 'substantial measures to minimise disputes, as well as providing a fair system for resolving disputes should they arise'. The Minister also described the Bill as 'retrospective as to process but not in relation to benefit levels'. … This supports reading s 259(1) with the generality suggested by its literal terms." 144 At [36] ff, Mason P examined some aspects of the changes to Ch 7 brought about by the Second 2001 Amending Act from the First 2001 Amending Act. I have already referred to these, but it is important to understand how the President dealt with the matter. 145 Mason P noted at [36] that in its original form introduced by the First 2001 Amending Act, Ch 7 dealt mainly with dispute resolution concerning compensation claims. The amendments introduced later in 2001 by the Second 2001 Amending Act applied and extended the procedures to claims for work injury damages. It is to be recognised that those changes were fundamentally to Pt 5 of the WC Act. Mason P then noted the terms of s 251 as introduced by the First 2001 Amending Act at [37], which provided that: "Except as otherwise specifically provided in this chapter, this chapter applies to and in respect of new claims only." (emphasis added) 146 As I have already indicated, a "new claim" was defined in the WIM Act, s 250 as any claim that was not an "an existing claim". The President then recognised that in the First 2001 Amending Act the phrase "existing claim" was defined as a claim for compensation benefits or for work injury damages in respect of an injury received before the commencement of the section, using the date of injury as the reference point to divide the new regime from the old. 147 Mason P noted at [40] that before the original s 251 commenced it was replaced by the current form of the section introduced by the Second 2001 Amending Act which provides: "Except as otherwise specifically provided in this Chapter, this Chapter applies to and in respect of new claim matters only." (emphasis added) 148 Mason P then noted at [41] that the Second 2001 Amending Act also replaced earlier definitions of "existing claim" and "new claim" and inserted the current definitions of "existing claim", "existing claim matter", "new claim" and "new claim matter". 149 Mason P noted that under the Second 2001 Amending Act the phrase "new claims" was still defined as claims that were not "existing claims" (although the parenthetical phrase "(made or entitled to be made)" had been inserted). He noted that "existing claim" was, after the Second 2001 Amending Act, now defined to refer only to claims for compensation (that is under the Workers Compensation Acts). It followed, Mason P said at [42], that any claim for damages was now considered a "new claim" and potentially within the purview of Ch 7 unless court proceedings had already been commenced for the direct operation of s 259(2). The President noted that, as the SRA had pointed out, this changed the reference point for distinguishing the new regime from the old regime (as regards claims for work injury damages, which had formed a part of "existing claims") from the date of injury to the date the proceedings were commenced. 150 After judgment was reserved the Court drew the parties' attention to s 251 and the definition of "new claim matter." The importance of this was that the argument had proceeded assuming the direct application of Div 2 to Mr Attileh's proceedings; yet, s 251 stated that unless otherwise specifically provided Ch 7 applied to and in respect of new claim matters only and thus applied to and in respect of only matters under the Workers Compensation Acts. Self evidently, Mr Attileh's claim was not under the Workers Compensation Acts; rather, it was a common law claim for negligence. Thus the Court sought assistance. 151 At [44], Mason P noted that the submissions of the parties on this matter were in agreement that Mr Attileh's proceedings did not fall within the concept of "new claim matter" and accordingly Ch 7 did not apply to Mr Attileh's claim of its own force, unless the introductory words of s 251 applied: "Except as otherwise specifically provided in this Chapter". At this point in the President's judgment, the terms of s 259(1) became important. If the words of s 259(1) could be taken to "otherwise specifically provide" for the purposes of the introductory words of s 251 then s 259(1) would see Div 2 applied to Mr Attileh's claim, notwithstanding the terms of s 251 making Ch 7 generally apply to and in respect of new claim matters only. The President, at [45], stated his view that the terms of s 259(1) were arguably not specific or emphatic enough to apply to a claim for work injury damages. He thought that s 259(1) arguably had ample work to do as regards new claim matters (defined as matters arising under the Workers Compensation Acts), because much of Ch 7 deals explicitly with new claims for compensation. 152 It should be noted at this point that Tobias JA, whilst agreeing with Mason P's judgment otherwise, expressed his preference for the view that s 259(1) was sufficiently specific to fall within the prefatory words of s 251. The balance of the President's reasons, however, made it unnecessary for Tobias JA to express a concluded view on that issue; it thus remained an open issue. The third judge (Santow JA) preferred to express no final view as to whether s 259(1) was sufficiently specific to fall within the opening words of s 251. 153 It is convenient to interpolate my view on this issue at this point. In the light of ss 259(2) and 262 which expressly concern a claim for work injury damages, there appears no reason to read down s 259(1) as limited to only one type of claim, being claims for (statutory) compensation. The word "claim" is defined in s 4 to mean a claim for (statutory) compensation or for work injury damages. Sections 259(2) and 262 deal with the latter. Subsection 259(1) is clearly, in my view, dealing with both types of claim. This is also reflected by the heading of the Division, "Making a claim for compensation or damages". A heading of a division is part of the Act: Interpretation Act 1987 s 35(1)(a). (I would therefore respectfully doubt the correctness of the statement of Mason P's views on s 259 described by Beazley JA in Wattyl Australia at 232 [10].) 154 This conclusion makes Mr Campbell's argument as to the meaning of "work injury damages" critical. Without the limitation sought by him, this meaning of s 259(1), which I favour, means that Div 2 of Pt 2 of Ch 7 applies of its own force to Mr Wilson's claim (that is, if it is one for "work injury damages"). 155 As Mason P said at [46], matters did not rest there (on his Honour's view of s 259(1)). His Honour then turned to Pt 18C of Sch 6 to the WC Act. The President noted that during the hearing of the appeal the parties directed submissions to the effect of cl 9(1) of Pt 18C, but that no attention was paid to cl 8 until the Court invited further submissions from the parties as to its effect. Mason P did not thereafter deal with cl 9(1) given the views he then expressed as to cl 8. 156 Mason P found that cl 8 applied to Mr Attileh's proceeding. Mason P expressed the view that in the light of the definition of the word "claim" as found in the WIM Act, s 4, made relevant to the WC Act by s 3(1AA) of the WC Act, cl 8(1) necessarily applied to the proceedings of Mr Attileh. This was so because of the clear and general words of the cl 8(1): "the making of a claim after the commencement of those sections". Mason P's reasoning was predicated upon Mr Attileh's claim being one for work injury damages, as that phrase was defined in s 250 of the WIM Act. The definition of the word "claim" in s 4 of the WIM Act meant a claim for compensation or for work injury damages. Based on that assumption, the words of cl 8(1) appeared clear. It should be noted that cl 8(2) provided that cl 8 had effect, despite s 251 of the WIM Act which limited the application of Ch 7 to and in respect of new claim matters only.

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The submissions on the broad attack 162 Mr Campbell approached the appeal initially on the basis of the acceptance of Attileh as correct. The appeal as originally framed and as argued orally was more narrowly advanced. I will deal with these more narrow arguments shortly. By reason of the course of debate on the appeal Mr Campbell sought leave, which was granted, to argue that Attileh was plainly wrong and should not be followed. Written submissions were filed by the parties in support of their respective positions. 163 Mr Campbell recognised that the ratio of Attileh was that claims for common law damages with respect to injuries suffered before 4 pm on 30 June 1987 were covered by Div 2 of Pt 2 of Ch 7 of the WIM Act because of cl 8 of Pt 18C of Sch 6 to the WC Act. 164 As I have already observed, Mr Campbell did not attack the reasoning process of the Court in Attileh, as far as it goes. The attack was directed to the assumption made in Attileh that does not appear to have been the subject of argument: that a claim for common law damages based on a cause of action in respect of the injury received before 4 pm on 30 June 1987 was a claim for "work injury damages" within the meaning of that phrase in s 250 of the WIM Act. That assumption (that was stated clearly by Mason P as a fact at [20] of Attileh) underpins the intractability of the conclusion about cl 8(1) concerning the making of a "claim" after the commencement of the sections in Ch 7 to which cl 8(1) was directed. 165 Mr Campbell's argument was based on the text and structure of the 2001 amendments and the clear purpose, he submitted, of dealing only with the scheme created from 1989. Central to this submission was the place of s 151U of, and Pt 14 of Sch 6 to, the WC Act that remained untouched by any of the 2001 amendments. The terms of parts of Ch 7 of the WIM Act such as ss 313, 314, 319, 322(4) and 323 assumed a degree of permanent impairment which could not be so unless Pt 5 of the WC Act was amended to apply to pre-1987 injuries, which it was not.

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166 Mr Watson's argument in response was that Mr Campbell's submissions failed to give appropriate weight to the operation of s 2A of the WC Act. By that interpretive provision, s 151U and Pt 14 of Sch 6 of the WC Act no longer operated in relation to proceedings in respect of pre-1987 injuries if those proceedings were commenced after 27 November 2001 or after 1 January 2002. That was so, it was submitted, not only because of the operation of cl 8 (with effect from 1 January 2002), but also because of cl 9(1) (with effect from 27 November 2001), Div 2 of Pt 2 of Ch 7 of the WIM Act of its own force by s 259(1) (with effect from 1 January 2002), Div 4 of Pt 3 of Ch 7 of the WIM Act of its own force (with effect from 1 January 2002) and Pt 6 of Ch 7 of the WIM Act of its own force (with effect from 1 January 2002). 167 Mr Watson's argument recognised that if s 151U "still works my client would lose": T p 33 ll 35. This concession may, taken literally, remove the need for dealing with the subsidiary arguments of Mr Campbell to which I will come. Mr Watson recognised (T p 39 ll 38-43) that if s 151U was left to operate according to its terms, the form of the Guidelines by way of delegated legislation could not be read as incompatible with and thus destructive of the worker's substantive rights; that is, the Guidelines could not introduce the 15 per cent permanent impairment requirement, if it were not within the statute. This recognition, in Mr Watson's customarily frank style, of the central difficulty that s 151U (and Pt 14 of Sch 6) had for him, if left unaffected by the 2001 amendments to the WIM Act and by cll 8 and 9(1) of Pt 18C of Sch 6 of the WC Act, helped collapse the argument in the appeal principally into the broad attack on the conclusion in Attileh. 168 Mr Watson submitted that the provisions to which I have referred expressly, and by necessary intendment, removed the effect of s 151U of, and Pt 14 of Sch 6 to, the WC Act after the 2001 amendments, leaving s 151U and Pt 14 of Sch 6 to operate to deny the caps and scheme procedures to pre-1987 injury claims only if proceedings in respect thereof had been commenced before 27 November 2001 or 1 January 2002.

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Disposition of the broad attack 169 In my view, the position contended for by Mr Campbell is correct. I come to this conclusion having regard to: (a) the clarity of the pre-enactment and contextual material that the mischief to which the 2001 amendments were directed was the cost of common law claims under the "current scheme" and made under the WC Act and the WIM Act and that the purpose of the 2001 amendments was to reduce the burden of verdicts and costs thereof; (b) the text and structure of the legislation; and (c) the application of relevant canons of statutory interpretation. 170 I need say no more about mischief and purpose taken from the enactment history and contextual materials. 171 It is to be appreciated at the outset that the phrase in question "work injury damages" is a definition, not a substantive provision. It is an aid to the construction of the statute: Gibb v Federal Commissioner of Taxation [1966] HCA 74; 118 CLR 628 at 635. Thus, its meaning is to be gleaned, not in isolation within s 250, but in the context of how it is deployed in the substantive provisions of the statute. 172 The destruction of, or imposition of a substantive restriction or limitation on, common law rights of suit for personal injury requires "very clear legislative intent": Berowra Holdings at 373 [23]. There has been some doubt thrown on this canon of construction in its application to common law rights of suit in "reforming" Acts whose purpose was to change the law: see Harrison v Melham at 382-384 [2]-[11] (Spigelman CJ), 403 [191] (Beazley JA) and 406-409 [209]-[221] (Basten JA). Nevertheless, the clear expression of view by the plurality in Berowra Holdings at 373 [23] on this very statute makes adherence to the principle mandatory. This is especially so when the Parliament has made a policy choice pellucid in its expression (in s 151U and Pt 14 of Sch 6) in 1987 and 1989 that the worker's common law right to damages was not to be affected by the changes to the regime for compensation (using the term in its general sense) for injuries suffered at work. The position is even further reinforced by the terms of s 151 of the WC Act that that Act does not affect any liability in respect of an injury existing independently of the Act except to the extent that the WC Act otherwise expressly provides. 173 It is necessary to construe the legislation (the WC Act and the WIM Act) as a whole in the way described in Project Blue Sky at 381-382 [69]-[71]. In that context, s 2A of the WC Act must be given effect. Section 2A(2) requires the two Acts to be construed as if one Act. The primacy of the provisions of the WIM Act (s 2A(3)) does not mean, however, that appropriate meaning or limitation by reference to object and purpose is not to be given to a provision in the WIM Act or that the literal words of a provision in the WIM Act gain a broader content than they would receive looking at the legislation as a whole and applying relevant canons of statutory construction, including having regard to context, purpose and mischief. 174 Turning to the legislation, the first critical factor is that s 151U and Pt 14 of Sch 6 were not expressly amended by the Parliament to have Pt 5 of the WC Act apply to causes of action in respect of injuries received before 4 pm on 30 June 1987 if proceedings had not been commenced before 27 November 2001. In the considerable body of amendments that were made by the Second 2001 Amending Act, such an amendment would have been both easy to draft and of sufficient clarity to evince a Parliamentary intention to destroy or significantly modify common law rights. No such step was undertaken. 175 The Parliament not only made no amendment to the WC Act to reveal an intent to affect rights concerning injuries received before 4 pm on 30 June 1987, but also it did not do so in its changes to the WIM Act. Reliance was placed in particular on s 260 (and any promulgated Guidelines) and Pt 6 of Ch 7 of the WIM Act especially ss 313, 314, 322 and 323 as effectively repealing s 151U of, and Pt 14 of Sch 6 to, the WC Act. None of these provisions goes any further than assuming that a degree of permanent impairment is required in any claim for work injury damages. They lack any textual clarity to require (as opposed to assume) such degree of permanent impairment sufficient to permit the conclusion that common law rights were intended to be affected. More importantly, however, only assuming as they do that a degree of permanent impairment is required for work injury damages, they point to the conclusion that work injury damages are confined to those that have already been affected by the express changes to Pt 5 of the WC Act. This is reinforced textually by the terms of s 322(1) that expressly contemplate that the assessment of permanent impairment is for the purposes of the Workers Compensation Acts. 176 Read in this context, the definition of work injury damages can be seen implicitly to be referable only to injuries to which Pt 5 of the WC Act speaks, namely, those received at or after 4 pm on 30 June 1987. 177 If the WIM Act changes were to bring about substantive changes to the common law rights protected by s 151U and Pt 14 of Sch 6, this would be contrary to the comment of the Minister in the Second Reading Speech for the Bill that became the First 2001 Amending Act that the changes were not retrospective as to benefit levels. 178 Reading the two Acts together, there is no express provision, let alone one which speaks with any clarity, that the new regime introduced in 2001 was intended to affect common law rights with respect to pre-30 June 1987 injuries. Given that the mischief to which the First and Second 2001 Amending Acts were directed was the cost and procedure of common law claims under the WC Act and the WIM Act, under the current scheme, Ch 7 can be seen to be directed thereto. The only way to read the definitional phrase "work injury damages" in the critical parts of Ch 7 of the WIM Act (ss 260, 313 and 314) is that it applies only to those injuries to which the clear legislative changes have been made in Pt 5 of the WC Act. That permits the tolerably clear conclusion that the whole of the 2001 changes, including ss 259, 260, 313, 314, Div 2 of Pt 2, Divs 2-5 of Pt 3 and cll 8 and 9 of Pt 18C of Sch 6 to the WC Act, apply to injuries received at or after 4 pm on 30 June 1987. 179 Clause 9(1) does not depend for its operation on the phrase "work injury damages". Nevertheless, it can clearly be understood as referable only to injuries affected by Pt 5, that is, at or after 4 pm on 30 June 1987 in respect of which proceedings had not been commenced. 180 If Mr Watson were correct as to the repealing effect of the provisions in Ch 7, there would be an anomaly in the legislation. The amendments to Pt 5 of the WC Act brought about by the Second 2001 Amending Act commenced at 9 am on 27 November 2001. Chapter 7 of the WIM Act (other than headings) commenced on 1 January 2002. If provisions of Ch 7 are to be taken to have impliedly repealed the effect of s 151U (in Pt 5) and Pt 14 of Sch 6, that would occur at a time different to the commencement date of other provisions of the Second 2001 Amending Act that dealt with Pt 5. Clause 9 of Pt 18C of Sch 6 commenced at 9 am on 27 November 2001: Second 2001 Amending Act, s 2(2)(b). Clause 8 of Pt 18C introduced by the Second 2001 Amending Act, Sch 5.1[3] by way of replacement provision commenced on 1 January 2002. 181 These discrepancies, not determinative of themselves, point to a lack of intention by Parliament to repeal, in part and indirectly, s 151U of, and Pt 14 of Sch 6 to, the WC Act by procedural changes to the WIM Act commencing at a date later than the substantive changes to Pt 5 of the WC Act. 182 This expression of view is contrary to Attileh. The argument was not put in this way in Attileh. Nevertheless, a new way of putting the matter should not be a ground for side-stepping the need to demonstrate that Attileh was "plainly" or "clearly" wrong, in a relevant respect. Nevertheless, it is a consideration. 183 I am sufficiently persuaded of the clarity of the position that the 2001 amendments did not reach back to affect causes of action in respect of injuries received before 4 pm on 30 June 1987 to the level of conviction discussed in Gett v Tabet [2009] NSWCA 76; 254 ALR 504 at 561-566 [274]-[295]. That is not to say that I disagree with the reasoning in Attileh, save for the correctness of the assumption and statement at [20] of Mason P's reasons. Nor is it to disagree with anything in Attileh that would mean that Ch 7 of the WIM Act or parts thereof or cll 8 and 9 of Pt 18C of Sch 6 thereof apply to claims for injuries received before 27 November 2001 or 1 January 2002, but at or after 4 pm on 30 June 1987. 184 That leaves the question whether Attileh should be departed from. I refer to the considerations in Gett v Tabet at 566-567 [296]-[301]. Mr Watson submitted that Attileh had been followed in Kimberley-Clark, Wattyl Australia and East West Airlines Ltd v Turner [2010] NSWCA 53. The correctness of Attileh for pre-30 June 1987 injuries did not arise in any of these cases. 185 The reasoning in Attileh remains of relevance for injuries received after 4 pm on 30 June 1987. 186 Contrary to these considerations, is the necessity to do justice to Mr Wilson according to law and according to the correct construction of a law of the Parliament. This consideration is, for me, determinative in this case, especially in circumstances where it does not disturb a settled body of cases. 187 I would depart from Attileh insofar as it concerns injuries received before 4 pm on 30 June 1987.

[174]

The narrower attack: even if cl 8 applies to Mr Wilson's claim 188 Mr Campbell began the appeal argument accepting that Attileh was correct. On this basis, he submitted that Mr Wilson was not prevented from proceeding with his common law action. 189 Mr Campbell first submitted that the Guidelines as delegated legislation could not impinge in a substantive way upon a common law right. The concession made by Mr Watson largely does away with the need to consider this argument. If, as is my view, there has been no attempt by the Parliament to modify s 151U and Pt 5 of the WC Act to apply to injuries received before 4 pm on 30 June 1987, then the procedural requirements under delegated legislation under the WIM Act cannot bring about the same result. So much was conceded. 190 In any event, at the time the claim was made by Mr Wilson the relevant Guidelines did not require him to make out or assert a 15 per cent permanent impairment. 191 Further, it is to be recognised that s 260(1) of the WIM Act refers to "applicable requirements" of the Guidelines. In my view, if it were the case that Ch 7 applied to pre-30 June 1987 injuries so as to impose procedures on the bringing of the cause of action, those procedures, so far as they arose out of the Guidelines, would only be those that were "applicable". This would require the requirements of the Guidelines to be relevant to the general cause of action for negligence otherwise untouched by Pt 5 of the WC Act. A similar approach can be seen in the comments of Basten JA in Kimberley-Clark at 196-197 [43]. His Honour's view was obiter because he was of the view that the claim in question was not one for work injury damages being a claim for nervous shock brought by a stranger to the employment relationship. 192 It is unnecessary for the disposition of this case to deal with the comments made by Beazley JA and Young CJ in Eq in Wattyl Australia at 247 [90]-[91] and 254 [169]-[175] about Kimberley-Clark. If, on the present hypothesis a provision of a Guideline under the WIM Act or a provision of the WIM Act appeared to require a state of affairs to be satisfied by a claimant (here a 15 per cent degree of permanent impairment) which was not legally necessary it is difficult to see how such a provision would be construed as affecting the substantive right. In any event, here, if Pt 5 has not been amended to require in any way injuries received prior to 4 pm 30 June 1987 to be subject to a degree of permanent impairment of 15 per cent, none of the Guidelines promulgated under s 260 would effect such a requirement. This much, as I have noted, has been conceded. 193 In my view, the case should be decided on the basis of the argument as ultimately presented. Mr Campbell submitted that no part of the First or Second 2001 Amending Act was sufficiently clear to amend Pt 5 of the WC Act or to otherwise impose upon a claim for damages for an injury received before 4 pm on 30 June 1987 a requirement found in Pt 5 for a 15 per cent permanent impairment as a pre-condition for the recovery of any damages. Mr Watson argued to the contrary and recognised that unless the First and Second 2001 Amending Acts can be seen effectively to repeal s 151U and Pt 14 of Sch 6 (except only to the extent that proceedings to vindicate pre-1987 injuries had been commenced prior to 27 November 2001 or 1 January 2002) the SRA must lose. 194 This is how the case should be decided. For the reasons that I have given, in my view, Mr Campbell's argument is correct. The form that the argument ultimately took, in my view, requires the questions to be slightly reformulated. I would reformulate the questions and I would answer them in terms set out in [4] above. 195 The parties asked that the question of costs abide the Court's substantive decision. I would order that submissions on costs be filed within 14 days. 196 GILES JA: I have had the privilege of reading the reasons of Allsop P in draft. I agree with them, and with the orders he proposes. 197 HODGSON JA: I agree with the orders proposed by Allsop P and I gratefully adopt his reasons. I would add the following. 198 In my opinion, the conclusion that the definition of "work injury damages" in s 250 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (WIM Act) is referable to injuries to which Part 5 of the Workers Compensation Act 1987 (NSW) (WC Act) applies, that is, only those received at or after 4 pm on 30 June 1987, is reinforced by the following considerations: (1) that definition states that "work injury damages" means "damages" of a specified kind; (2) s 250 includes a definition of "damages" as having the same meaning as in Part 5 of the WC Act; (3) the definition of "damages" in Part 5 of the WC Act is a definition in s 149 of that Act that applies only "In this Part"; (4) by s 151U of the WC Act, Part 5 of that Act applies only to causes of action in respect of injuries received at or after 4 pm on 30 June 1987; (5) therefore, the definition of "damages" in Part 5 of the WC Act is one applying only in respect of such causes of action; (6) therefore, plausibly, the definition of "work injury damages", being a sub-class within this definition of "damages", was intended to have the same limitation. 199 I do not suggest that this is a conclusive argument, but rather that it gives some persuasive textual support to the conclusion, reached by Allsop P for other reasons, that the definition of "work injury damages" in s 250 of the WIM Act is referable to injuries to which Part 5 of the WC Act applies. 200 If that is correct: (1) a claim for damages in respect of an injury received before 4 pm on 30 June 1987 is not a "claim" as defined in s 4 of the WIM Act (noting that in s 4, "work injury damages" is given the same meaning as in s 250 of the WIM Act); (2) such a claim is therefore neither a "new claim" nor an "existing claim" in the definition of those expressions in s 250 of the WIM Act. 201 I believe it follows that there is no inconsistency between the WIM Act and s 151U of the WC Act that could possibly have the effect of repealing the latter provision. 202 TOBIAS JA: I have had the privilege of reading in draft the detailed reasons of the President including his clear and persuasive analysis of the legislative history of the complex amendments to the WC Act and to the WIM Act. That analysis and his Honour's conclusions drawn therefrom persuade me that I was in error in my reasoning in Attileh. I therefore agree with the answers given by the President to the reformulated questions and to the orders he proposes for the reasons he has given. 203 MACFARLAN JA: I agree with Allsop P. **********

Wilson v State Rail Authority of New South Wales

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