Workers Compensation Nominal Insurer v Sako

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

HEADNOTE [This headnote is not to be read as part of the judgment] The respondent, Mr Sako, alleged that he was exposed to respirable crystalline silica dust in the course of his employment as a stonemason by various employers from about late 2009 to about July 2022. He brought proceedings in the Dust Diseases Tribunal against six defendants with respect to alleged injuries arising from that exposure. Five of the defendants were suppliers of engineered stone products. The sixth was the Workers Compensation Nominal Insurer (WCNI). It was common ground that one of Mr Sako's employers was uninsured. The primary judge granted leave to Mr Sako to file an amended statement of claim which alleged that, in the event that any of Mr Sako's employers during the relevant period were uninsured, WCNI was directly liable for the liabilities of those employers pursuant to s 140(1) of the Workers Compensation Act 1987 (NSW) (the 1987 Act). Section 140(1) applies to claims for "work injury damages in respect of an injury to a worker". WCNI sought leave to appeal to the Court of Appeal. Ground 1 concerned a separate issue that fell away at the hearing of the application. Ground 2 concerned the order granting leave to amend the statement of claim to plead s 140(1). The Court held (McHugh JA, Stern JA and Price AJA agreeing), granting leave to appeal with respect to Ground 2 and allowing the appeal: 1. The definition of "injury" in s 4 of the 1987 Act provides the literal meaning of the word "injury" in s 140(1). This excludes dust diseases (i.e., silicosis) from the operation of s 140(1): [1] (Stern JA), [46]-[48], [89] (McHugh JA), [95] (Price AJA). 2. By reason of s 3(1AA) of the 1987 Act, the definition of the words "work injury damages" in s 250 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the 1998 Act) provides the literal meaning of those words in s 140(1) of the 1987 Act. This also excludes dust diseases (i.e., silicosis) from the operation of s 140(1): [1] (Stern JA), [49]-[56], [89] (McHugh JA), [95] (Price AJA). 3. The conclusion that s 140(1) excludes dust disease claims is required by the text, context and history of the legislative scheme, including the longstanding distinction in the regulation of workers compensation between dust diseases and other workplace injuries. The purpose of using the two defined terms "work injury damages" and "injury" in s 140(1) was clearly to exclude dust diseases from the uninsured liability regime: [1] (Stern JA), [57]-[87] (McHugh JA), [95] (Price AJA). Sydney Seaplanes Pty Ltd v Page (2021) 106 NSWLR 1; [2021] NSWCA 204; Wass v Director of Public Prosecutions (NSW) (2023) 111 NSWLR 210; [2023] NSWCA 71, distinguished.

JUDGMENT

1. STERN JA: I agree with McHugh JA.
2. McHUGH JA: Before the Court is a single question: does s 140 of the Workers Compensation Act 1987 (NSW) (the 1987 Act), which permits claims for work injury damages to be made against the Nominal Insurer, apply to a claim where the relevant injury is silicosis?
3. The answer to that question is no. Leave to appeal should be granted and the appeal should be allowed.

Mr Sako's employment

1. The respondent, Mr Sako, is the plaintiff in proceedings in the Dust Diseases Tribunal of NSW. He alleges that he suffers from silicosis, latent tuberculosis and a secondary psychological injury, being major depressive disorder. He alleges that his injuries were caused by respirable crystalline silica dust (RCSD) to which he was exposed as a result of work he performed while employed as a stonemason in the period from late 2009 until about July 2022 as follows: 1. from about late 2009 to late 2011 or 2012, he was employed by Mr Rabi Harmes; 2. from about late 2011 or 2012 until about May 2014, he was employed by Italian Marble and Granite Pty Ltd (Italian Marble); 3. from about April 2017 until about July 2022, he was employed by Granitestone Pty Ltd (Granitestone).
2. In a statutory declaration made on 9 January 2023, Mr Sako states that he was informed that he had silicosis in mid 2022, and that he has not worked as a stonemason or done any other work since 31 June 2022.
3. The focus of the application is the period in which Mr Sako was working for Mr Harmes, because it is now common ground that Mr Harmes did not have a policy of insurance in place that would cover his liability to Mr Sako if such liability is established.

Mr Sako's alternative claims in the proceedings

1. Mr Sako sues six defendants. Five are suppliers of engineered stone products. The sixth defendant is the applicant, the Workers Compensation Nominal Insurer (WCNI). Mr Sako's pleading advances claims against WCNI on alternative bases, both of which were the subject of an interlocutory judgment given by the primary judge, Scotting J, on 11 June 2024.
2. In his original statement of claim, Mr Sako pleaded a claim against WCNI under the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) (the Third Party Claims Act). Ground 1 in the draft notice of appeal, which fell away at the hearing of the application, was directed to the leave granted by the primary judge to continue that claim.
3. In his amended statement of claim, Mr Sako also pleads an alternative claim against WCNI under s 140 of the 1987 Act. Ground 2 is directed to the leave granted by the primary judge to file that amended statement of claim.

The original claim pursuant to the Third Party Claims Act

1. It is first appropriate to address the circumstances in which Ground 1 in the draft notice of appeal has fallen away, as those circumstances may have a bearing on the future conduct of the matter.
2. As set out above, Mr Sako's claim against WCNI was originally brought only under the Third Party Claims Act.
3. Section 4(1) of that Act provides: "If an insured person has an insured liability to a person (the claimant), the claimant may, subject to this Act, recover the amount of the insured liability from the insurer in proceedings before a court."
4. Section 5(1) provides: "Proceedings may not be brought, or continued, against an insurer under section 4 except by leave of the court in which the proceedings are to be, or have been, commenced."
5. In the original statement of claim, Mr Sako pleaded as follows against WCNI: 1. at all material times there were policies of insurance between "scheme agents" exercising the functions of WCNI under s 154G of the 1987 Act and each of the plaintiff's employers (i.e., including Mr Harmes): [14]; 2. WCNI was liable to indemnify Mr Sako's employers in respect of their liability to pay common law damages to the plaintiff for his injuries: [15]; 3. Mr Sako sued WCNI pursuant to s 4 of the Third Party Claims Act as if the proceedings were proceedings to recover damages from the employers: [16].
6. In order to continue the proceedings against WCNI on that basis, Mr Sako needed leave pursuant to s 5 of the Third Party Claims Act.
7. However, the results of a search conducted by the State Insurance Regulatory Authority (SIRA) did not support the allegations at [14] and [15] of the statement of claim that WCNI was liable under a policy of insurance covering Mr Harmes in the alleged period of Mr Sako's employment with Mr Harmes. The search indicated that while Mr Harmes had policies of insurance in the period from 24 September 2007 until 24 September 2009, there was no record of a policy in the period from late 2009 to late 2011 or 2012, when Mr Sako was employed by Mr Harmes.
8. At the time the primary judge dealt with the matter, there nevertheless remained some uncertainty as to WCNI's position about whether or not Mr Harmes had been insured in the period of Mr Sako's employment. That being so, Mr Sako pressed his claim against WCNI under s 4 of the Third Party Claims Act with respect to his employment by Mr Harmes.
9. In his judgment of 11 June 2024, the primary judge granted leave to Mr Sako pursuant to s 5 of the Third Party Claims Act "to continue the proceedings against [WCNI]": Sako v Workers Compensation Nominal Insurer [2024] NSWDDT 6 at [19]. His Honour did not find that Mr Harmes was insured, and the leave was not confined, in that it did not distinguish among Mr Sako's employers so as to exclude Mr Harmes. Ground 1 in the draft notice of appeal challenged the grant of leave insofar as it concerned Mr Sako's employment with Mr Harmes, and asserted that the power to grant leave was not engaged in the absence of a finding (i.e., as opposed to an allegation) that Mr Harmes was insured by WCNI. However, in the circumstances explained below, Ground 1 has fallen away. It is thus not appropriate to express any view as to whether his Honour erred in granting leave to proceed on that basis.
10. The Court was informed without objection at the hearing that the uncertainty as to whether Mr Harmes was insured during the period of Mr Sako's employment has now been resolved by a notice to admit facts, the effect of which is that Mr Harmes' uninsured status in the relevant period is taken to be admitted (Tcpt, 21 November 2024, 4/20). Senior Counsel for Mr Sako informed the Court that the allegation at [14] of the statement of claim that there had been an insurance policy relevantly covering Mr Harmes therefore fell away. He also informed the Court that it was accepted that the Third Party Claims Act was not engaged with respect to any liability of Mr Harmes to Mr Sako. The pleading should be amended to reflect that position.
11. On that basis, Mr Sako was prepared to consent to the order sought in prayer 2(a) of the draft notice of appeal. The effect of that order would have been that in lieu of the unconfined leave to continue the proceedings against WCNI granted pursuant to s 5 by the primary judge, the leave would be confined by the words, "the proceedings against [WCNI] with respect to the insured liabilities of Italian Marble and Granite Pty Ltd and Granitestone Pty Ltd".
12. However, s 5 confers a power to grant leave to bring or continue "[p]roceedings … against an insurer". A question arose at the hearing whether that power would authorise a grant of leave that was confined as sought in prayer 2(a). This question was not fully argued and it is preferable not to decide it. Since Mr Sako's allegation that Mr Harmes had a relevant policy of insurance is not pressed, and since WCNI will be a party to the proceedings in any event because of the other two employers, there is no need to disturb the order granting leave to continue the proceedings made below, as Senior Counsel for WCNI accepted.
13. That being so, leave to appeal should not be granted with respect to Ground 1 in the draft notice of appeal.

The amendments to claim pursuant to s 140 of the 1987 Act

1. To protect against the likelihood (which has now become the common ground) that Mr Harmes was uninsured in the relevant period, Mr Sako applied to amend his statement of claim to allege in the alternative that, in the event that any of his employers were uninsured, WCNI was directly liable with respect to the liabilities of those employers pursuant to s 140 of the 1987 Act.
2. As noted above, the primary judge granted Mr Sako leave to file the amended statement of claim.
3. WCNI had resisted the amendment on the ground of futility, arguing that a claim relating to a dust disease (i.e., silicosis) is excluded from the legislative regime with respect to uninsured defendants: J[6]. The primary judge referred to the parties' competing arguments concerning the construction of s 140 at J[5] and J[15]. Those arguments were substantially similar to the points run in this Court.
4. His Honour granted leave to amend on the basis that Mr Sako's construction of s 140 was "clearly arguable and thereby not futile": at J[7] and J[16]. His Honour considered that it was inappropriate to decide the statutory interpretation point finally at the stage the litigation had reached: at J[7] and J[17]. His Honour also pointed out that WCNI was presently an active party to the proceedings, representing the interests of Italian Marble and Granitestone, and that its interests included establishing the nature and extent of Mr Sako's exposure to RCSD in his various periods of employment: at J[13]. His Honour said that if WCNI was also required to represent the interests of Mr Harmes, that would add very little to its existing role in the litigation and it was highly unlikely that it would add substantially to its costs.

Ground 2: does s 140 of the 1987 Act apply when the relevant injury is silicosis?

1. Ground 2 in the draft notice of appeal is as follows: "The trial judge erred in law in granting leave to the respondent to amend his statement of claim in that the trial judge ought to have found that section 140 of the Workers Compensation Act 1987 does not apply to a claim against an employer for damages where the relevant injury is silicosis."

Leave to appeal

1. The argument in this Court proceeded on the footing that if leave were granted, in order to succeed on Ground 2 WCNI would need to show that the amendment was futile, in the sense that it would be liable to be struck out. That standard invokes the cautious approach to summary dismissal required by the line of authority of which General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69, recently discussed in this Court in HNOE Limited v Angus & Julia Stone Pty Ltd [2024] NSWCA 271 at [51]-[59] per Bell CJ (Leeming and Payne JJA agreeing) ("Angus & Julia Stone"), is the best-known example.
2. That high standard, coupled with the particular caution called for in granting leave to appeal from an interlocutory decision concerning a matter of practice and procedure (see, e.g., Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177; [1981] HCA 39; PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 at [3]) - particularly where the decision below permitted a claim to advance to a hearing on the merits, rather than dismissing it summarily - would not ordinarily make this a promising candidate for the grant of leave. But there are significant countervailing considerations in this case.
3. The primary judge was not persuaded that the amendment was futile because his Honour considered that Mr Sako had an arguable case on the construction of s 140. While that is undoubtedly true, in the sense that counsel, acting responsibly, can formulate arguments which can properly be advanced for or against the proposition, that is not the test: see Angus & Julia Stone at [52]-[53]. As the Chief Justice said in that case at [58], the fact that argument, even of an extensive kind, may be necessary to demonstrate that a case cannot succeed should not stand in the way of its resolution. In the present case the issue raised by Ground 2 is one of statutory construction. It is a pure question of law, one to which there can be only one correct answer. As in Angus & Julia Stone, there are no relevant issues of fact involved.
4. That is not to suggest that an application to strike out or for summary dismissal is an appropriate vehicle for every contested question of statutory interpretation merely because it involves a question of law; far from it. Questions of practical utility will often be determinative. That there was "real utility in answering" the question in Angus & Julia Stone was one of the matters identified by the Chief Justice in describing "the unusual circumstances of this case" at [58]. As Leeming JA, with whom Payne JA also agreed, said in the same case, "[u]ltimately it is a question of judgment": at [121].
5. No objection of inutility was raised in this Court. At the hearing Mr Sako did not dispute that it was appropriate for the Court to address the construction of s 140 when determining whether the primary judge erred in granting leave to amend, given that there were no facts in issue that might be relevant.
6. Senior Counsel for both parties informed the Court that they were unaware of any case in which the issue raised by Ground 2 had previously arisen. Nevertheless, the question of construction at issue is potentially of considerable significance to workers suffering serious injury in respect of which they may have no insured defendant to sue. At the heart of Mr Sako's claim is the allegation that he was injured in the course of his employment by inhaling large volumes of RCSD liberated from engineered stone products. The risks of working with such products led to an outright prohibition in 2024 on work that involves manufacturing, supplying, processing or installing engineered stone benchtops, panels or slabs: see reg 529D of the Work Health and Safety Regulation 2017 (NSW). Many more claimants may allege that they have suffered injury in circumstances similar to Mr Sako's. How many of them will find that their employer was uninsured is unknown. It is true that, as in this case, plaintiffs in dust disease cases may often have a solvent or insured manufacturer or distributor to sue. But as Senior Counsel for WCNI submitted, that may not universally be so.
7. Given the potential importance of the issue and the fact that it is capable of resolution, and the Court having heard full argument, leave to appeal should be granted.

Section 140

1. Although the relevant legislation, being principally the 1987 Act, the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the 1998 Act) and the Workers' Compensation (Dust Diseases) Act 1942 (NSW) (the 1942 Dust Act), has been amended often, which may have a bearing on the proper construction of the relevant provisions, it was common ground that the parties' rights were to be determined in accordance with Div 6 of Pt 4 of the 1987 Act, which addresses uninsured liabilities and contains s 140, in its form at the time of the hearing in this Court.
2. Section 140 of the 1987 Act relevantly provides: 140 Persons eligible to make claims (1) A claim under this Division may be made against the Nominal Insurer by any person who considers he or she has a claim against an employer for compensation under this Act or work injury damages in respect of an injury to a worker, if - (a) the employer is uninsured, or (b) the person claiming the compensation has been unable, after due search and inquiry, to identify the relevant employer. (2) An employer is considered to be uninsured if the employer - (a) had not obtained, or was not maintaining in force, a policy of insurance for the full amount of the employer's liability under this Act in respect of the injured worker at the relevant time, or (b) having been a self-insurer at the relevant time, has ceased to undertake liability to pay compensation to the employer's own workers (but only if the claim cannot be paid under section 216 from any money deposited with the Authority or under any arrangement relating to the refund of any such deposit). … (2B) The regulations may prescribe the searches and inquiries necessary to constitute due search and inquiry to identify an employer for the purposes of this section. (3) If a payment is made by the Nominal Insurer in respect of a claim under this Division and the employer is subsequently identified, the Nominal Insurer may recover the amount paid from the employer or the employer's insurer in the manner provided by this Division. …
3. For present purposes, the crucial words in s 140(1) are "work injury damages in respect of an injury". WCNI submits that both sets of italicised words are defined terms which expressly exclude dust diseases as defined by the 1942 Dust Act. There is strong textual support for that submission, as will be seen.
4. However, Mr Sako submits that a purposive and contextual approach to construction results in the opposite interpretation.

The amended statement of claim

1. The relevant paragraphs of Mr Sako's amended statement of claim are 16A and 16B: "16A. In addition or in the alternative, in the event that any of the employers after 30 June 1987 were uninsured or are unable to be identified by the plaintiff, the plaintiff sues the sixth defendant directly for the liabilities of those employers pursuant to section 140 of the Workers' Compensation Act 1987 (NSW). 16B. The basis of the direct claim against the sixth defendant is: (a) the plaintiff is entitled pursuant to section 140 of the Workers' Compensation Act 1987 to make a claim against the sixth defendant for "work injury damages" in respect of an injury if the employer is uninsured or if the plaintiff is unable to identify the relevant employer; (b) for the purposes of section 140: (i) the term "work injury damages" is defined in section 250 of the Workplace Injury Management and Workers Compensation Act 1998 as, inter alia, 'damages recoverable from a worker's employer in respect of an injury to the worker caused by the negligence or other tort of the employer'; (ii) an employer is uninsured for the purposes of section 140 if the employer 'has not obtained, or was not maintaining in force, a policy of insurance for the full amount of the employer's liability under this Act in respect of the injured worker at the relevant time'; (iii) the full amount of the employer's liability in respect of injuries an employer is required to insure against is prescribed by section 155 of the Workers' Compensation Act 1987; (iv) the term "injury" for the purposes of the insurance an employer is required to obtain and maintain pursuant to section 155 is defined by section 155(1A) to include 'a dust disease as defined in the Workers' Compensation (Dust Diseases) Act 1942 and the aggravation, acceleration or deterioration of a dust disease as so defined'; and (v) the definition of the term "injury" in section 155(1A) informs the scope of the liability of the sixth defendant pursuant to section 140 for the liability of any uninsured or unidentified employers to pay damages to the plaintiff in respect of the injury the subject of these proceedings. (c) in the premises, the plaintiff is entitled to make a direct claim for damages against the sixth defendant for the injuries pleaded herein in the event that any of the employers after 30 June 1987 were uninsured or are unable to be identified."
2. As Senior Counsel for WCNI submitted, although par 16B is not a pleading as such, it summarises the basis on which Mr Sako advances his claim.

The statutory text: two defined terms

1. Mr Sako relied on the proposition, which was ultimately uncontroversial, that the "modern approach to interpretation" "insists that the context be considered in the first instance": Wass v Director of Public Prosecutions (NSW) (2023) 111 NSWLR 210; [2023] NSWCA 71 at [3] per Leeming JA (Bell CJ and Kirk JA agreeing) ("Wass"), citing K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 315; [1985] HCA 48. So much may be accepted, and these reasons will return to the context below. The task nevertheless remains one of construing a statutory text, and so it is necessary to identify the text to be construed.
2. In this case, as noted above, the words "work injury damages in respect of an injury" in s 140 of the 1987 Act use defined terms. Section 6 of the Interpretation Act 1987 (NSW) provides: "Definitions that occur in an Act or instrument apply to the construction of the Act or instrument except in so far as the context or subject-matter otherwise indicates or requires." The phrase "work injury damages" in particular is not one of ordinary legal usage beyond these statutes; in the context of the 1987 Act, it calls out for definition.
3. The conventional approach is to read the words of a definition into the substantive enactment and then to construe the substantive enactment in its context and bearing in mind its purpose: see, e.g., Kelly v The Queen (2004) 218 CLR 216; [2004] HCA 12 at [103] per McHugh J ("Kelly"). However, as Perry Herzfeld and Thomas Prince point out in Interpretation (3rd ed, 2024, Law Book Company) at [3.40], that approach can encounter difficulties where the defined word or expression cannot simply be replaced by its definition, for example because the definition is not exhaustive, or because it otherwise gives rise to logical or grammatical infelicities. In the present case, as will be seen, the definitions are up to half a page long, they are both inclusive and exclusive, and they involve nesting one definition inside another. They are not readily transplanted into the substantive enactment. Notwithstanding that difficulty, it should be borne in mind that the definitions are not merely part of the surrounding context in which the text of s 140 is to be construed. As was pointed out in Kelly at [103], the definitions are "part of … the text of the substantive enactment" itself.
4. Section 2A(2) of the 1987 Act provides that the 1987 Act "is to be construed with, and as if it formed part of, the 1998 Act. Accordingly, a reference in this Act to this Act includes a reference to the 1998 Act." Section 2A(3) of the 1987 Act provides that in the event of an inconsistency between the 1987 Act and the 1998 Act, the 1998 Act prevails to the extent of the inconsistency.
5. Section 3(1AA) of the 1987 Act provides that "[i]n this Act, words and expressions have the same meanings as they have in the 1998 Act, unless this Act provides otherwise."

"Injury"

1. The word "injury" is defined in s 4 of the 1987 Act. By par (a), injury "means personal injury arising out of or in the course of employment". However, par (c) of the definition expressly provides that injury "does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by [the 1942 Dust Act], or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined."
2. It was common ground that the disease alleged by Mr Sako, silicosis, is a dust disease within the meaning of the 1942 Dust Act. It was not suggested that Mr Sako was employed in or about a mine.
3. That being so, if the definition in s 4 of the 1987 Act provides the meaning of the word "injury" in s 140(1), Mr Sako's silicosis is excluded from the operation of the section, and Mr Sako cannot bring his claim within s 140. Paragraphs 16A and 16B of his amended statement of claim would be bad in law, and the order granting him leave to file his amendment would be set aside on the ground of futility.

"Work injury damages"

1. The expression "work injury damages" is not defined in the 1987 Act. By reason of s 3(1AA) of the 1987 Act, that expression, where used in the 1987 Act, has the meaning given in the 1998 Act.
2. Section 4(1) of the 1998 Act provides that "work injury damages has the same meaning as in Chapter 7 (New claims procedures)."
3. Section 250(1) of the 1998 Act, which is within Chapter 7, relevantly provides: In this Chapter - … work injury damages means damages recoverable from a worker's employer in respect of - (a) an injury to the worker caused by the negligence or other tort of the employer, or (b) the death of the worker resulting from or caused by an injury caused by the negligence or other tort of the employer, whether the damages are recoverable in an action for tort or breach of contract or in any other action, but does not include motor accident damages.
4. Central to that definition is again the word "injury".
5. Section 4(1) of the 1998 Act defines "injury" in similar but not identical terms to the definition of injury in the 1987 Act. Relevantly, the 1998 Act definition expressly provides in par (c) that injury - does not include (except in the case of a worker employed in or about a mine) - (i) a dust disease, or (ii) the aggravation, acceleration, exacerbation or deterioration of a dust disease.
6. Section 4(1) of the 1998 Act then defines "dust disease" as having the same meaning it has in the 1942 Dust Act.
7. The effect of these provisions is that for the purposes of the 1998 Act, the expression "work injury damages" excludes damages recoverable from a worker's employer in respect of an injury that is a dust disease.
8. Again, if that meaning of "work injury damages" is the meaning to be given to that expression in s 140(1) of the 1987 Act, Mr Sako cannot bring his claim within s 140. Paragraphs 16A and 16B of his amended statement of claim would be bad in law, and his amendment would be futile.

The distinct treatment of dust diseases and general workers compensation

1. One further point should be made about the definitions of "injury" in s 4 of each of the 1987 and 1998 Acts. The distinction which those definitions draw between dust diseases and other workplace injuries is not an innovation brought about by those two Acts. It reflects a distinction in the regulation of workers compensation that goes back more than a century and continues to this day. Mr Sako acknowledged that "the statutory regime governing compensation for dust diseases has historically been separate from the statutory regime governing compensation for other work-related injuries." These reasons will return to the specific history of the provisions relating to insurance and uninsured defendants below. For present purposes it suffices to note the following written submissions which WCNI made about the current differences between the two regimes, which were not controversial.
2. WCNI relied upon the following provisions of the 1987 Act, "… which apply to the recovery of work injury damages but which do not apply to the recovery of damages for a dust disease in proceedings in the Dust Diseases Tribunal: (a) s 151G - which limits work injury damages 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 (i.e. - no damages for non-economic loss); (b) s 151H - which provides a permanent impairment threshold of 15% before damages may be awarded; (c) s 151I - which provides a cap on the damages that may be awarded for loss of earnings or earning capacity, which are limited to the maximum amount of weekly payments of compensation; (d) s 151IA - which limits the recoverability of damages for loss of earning capacity to the pension age; (e) s 151J - which provides a prescribed discount rate of 5% (cf 3% at common law) for the calculation of future economic loss; (f) s 151R - which prohibits the award of exemplary or punitive damages; (g) s 151AD - which prevents a secondary victim from recovering damages for pure mental harm unless they also have a work injury."
3. WCNI relied upon the following provisions of the Dust Diseases Tribunal Act 1989 (NSW), "… which confer advantages upon workers in the Dust Diseases Tribunal that are not available to other workers: (a) s 11A - which provides for an award of provisional damages; (b) s 12A - which abolishes the limitation period for dust-related conditions; (c) s 12B - which disapplies [section] 2(2)(d) of the Law Reform (Miscellaneous Provisions) Act 1944 where proceedings are commenced prior to the death of a plaintiff; (d) s 25B - which prevents the relitigation or reargument of previously-determined general issues without leave."
4. That is significant context in which to assess Mr Sako's arguments based on purpose. Mr Sako refers to Lord Diplock's statement that "if … the Courts can identify the target of Parliamentary legislation their proper function is to see that it is hit: not merely to record that it has been missed", cited in Wass at [4]. As to seeing that the target is hit, the task of legitimate interpretation has boundaries which are ultimately marked out by the statutory text as a whole. But no issue of missing a target can arise unless the target is first identified. That question looms large in this case: in light of their distinct historical treatment, are dust diseases properly identified as part of Parliament's "target" in enacting s 140?
5. A related matter of context is that in light of the history of the general workers compensation legislation in New South Wales, it is not sensible to describe the legislation as a whole as beneficial, or even as having an overarching purpose that assists in answering the present question. The observations of Payne JA (Gleeson JA and Sackville AJA agreeing) in Hunter Quarries Pty Ltd v Mexon (2018) 98 NSWLR 526; [2018] NSWCA 178 at [64]-[65] apply here. After referring to the "system objectives" set out in s 3 of the 1998 Act, his Honour said (matter in square brackets and italics added): "65 It is true that one purpose of the Workers Compensation Act [i.e., the 1987 Act] is to benefit workers but it is going too far to say that every grant of an entitlement should be construed broadly because it is part of a beneficial scheme. Section 3(d) [of the 1998 Act] identifies another object as being 'to be fair, affordable, and financially viable'. The remarks of Gleeson CJ in Carr v Western Australia (2007) 232 CLR 138; [2007] HCA 47 at [5] are apposite: '[5] ... In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act is to be preferred to a construction that would not promote that purpose or object. As to federal legislation, that approach is required by s 15AA of the Acts Interpretation Act 1901 (Cth). It is also required by corresponding State legislation, including, so far as presently relevant, s 18 of the Interpretation Act 1984 (WA). That general rule of interpretation, however, may be of little assistance where a statutory provision strikes a balance between competing interests, and the problem of interpretation is that there is uncertainty as to how far the provision goes in seeking to achieve the underlying purpose or object of the Act. Legislation rarely pursues a single purpose at all costs. Where the problem is one of doubt about the extent to which the legislation pursues a purpose, stating the purpose is unlikely to solve the problem. For a court to construe the legislation as though it pursued the purpose to the fullest possible extent may be contrary to the manifest intention of the legislation and a purported exercise of judicial power for a legislative purpose.' 66 The Workers Compensation Act [i.e., the 1987 Act] does not pursue a single purpose of providing the maximum amount of benefits to workers at all costs. Where, as here, the problem is one of doubt about the extent to which the legislation pursues a purpose, stating the purpose is unlikely to solve the problem. For this Court to construe the Workers Compensation Act as though it pursues only the purpose of providing benefits to workers to the fullest extent possible would be contrary to the manifest intention of the legislation."
6. See also Construction Forestry Mining and Energy Union v Mammoet Australia Pty Ltd (2013) 248 CLR 619; [2013] HCA 36 at [40]-[41] per Crennan, Kiefel, Bell, Gageler and Keane JJ.
7. As WCNI submitted, the workers compensation regime balances the need to provide compensation to injured workers against the need to do so in a fiscally responsible way. For example, the legislation restricts rights of recovery through the thresholds and caps referred to above. The legislation is also a patchwork, the product of political compromises involving different interests in different industries over time.
8. To the extent that Mr Sako's arguments involve the proposition that Parliament should be understood to have intended to treat all industries, all injuries and all workers equally when enacting s 140, the distinct historical treatment of dust diseases and the patchwork nature of the legislative regime are obstacles in his way.

Mr Sako's argument: context

1. As noted above, Mr Sako relied on the proposition that the "modern approach to interpretation" "insists that the context be considered in the first instance": Wass at 111 NSWLR 212 [3]; Sydney Seaplanes Pty Ltd v Page (2021) 106 NSWLR 1; [2021] NSWCA 204 at [27] per Bell P ("Sydney Seaplanes"). The role of context, and the broad conception of what it encompasses, were thoroughly canvassed by Bell P in Sydney Seaplanes at [27]-[41]. Context includes not only the immediate context of other provisions in the same statute, but also the existing state of the law, the legislative purpose and the mischief sought to be remedied: at [30]. However, in Sydney Seaplanes the specific use made of context (in particular, of mischief and legislative purpose) was to read down the literal meaning of the statutory language: at [56]. As Bell P said at [57], the "statutory context, encompassing legislative purpose and history, sometimes requires the literal or ordinary meaning of words to be read more narrowly" than the text alone would justify.
2. Wass was also a case that involved reading a statute more narrowly than the literal words isolated from their context suggested. There, one subsection in a statute provided that an application to revoke an apprehended violence order "may, at any time, be made". The Court held that that power was to be construed as a power to revoke only unexpired orders. That was so for reasons that took into account other uses of the word "revoke" in the statute, the legislative history and the purpose of amendments to other parts of the same section (see at [34]-[44]) which had removed an express power to revoke expired orders: at [49]-[59].
3. By contrast, the exercise in construction which Mr Sako asks the Court to undertake involves expanding the scope of operation beyond the literal meaning of the text, given that the definitions of "injury" and "work injury damages" form part of the text of s 140. Mr Sako's construction involves contradicting the literal meaning of the text, which expressly excludes dust diseases from the operation of the substantive enactment.
4. The two principal matters of context to which Mr Sako referred were what was said to be the purpose of s 140, as disclosed in certain extrinsic materials, and also s 155 of the 1987 Act, which expressly includes dust diseases in the meaning of the word "injury" in relation to compulsory policies of insurance for employers.

Context: the extrinsic materials

1. As to the extrinsic materials, Mr Sako relied upon the report of the Commission of Inquiry into Workers Compensation Common Law Matters dated 31 August 2001 prepared by the Hon Justice Terry Sheahan, who recommended as follows: "9.3 Uninsured employers Currently the Uninsured Liability and Indemnity Scheme operated by WorkCover (Division 6 of Part 4 of the 1987 Act) ensures statutory benefits, but not common law damages, to be paid where a negligent employer is uninsured. Injured workers should all have equal opportunity under the scheme, including the option of a common law claim where available. I recommend that the government examine the possibility of establishing in the scheme something in the nature of the Nominal Defendant procedure, common for many years in the motor accident scheme to deal with such claims." (Emphasis supplied.)
2. This recommendation drew no distinction between dust diseases and other injuries. By the same token, nor did it advert to the longstanding distinction in the existing legislative regimes. The words "equal opportunity" in the third paragraph are thus more readily understood as directed to the distinction drawn in the first paragraph between "statutory benefits" and "common law claims", than to the distinction between dust diseases and other injuries.
3. The recommendation at 9.3 was taken up in the amendment to s 140 made by Sch 9 of the Workers Compensation Legislation Further Amendment Act 2001 No 94 (NSW), which expanded access to the Uninsured Liability and Indemnity Scheme to claims not only for compensation under the 1987 Act but also to claims for "work injury damages in respect of an injury to a worker". Those same words are in s 140(1) in its present form. It might be noted that in 2001 the definition of "injury" in the 1987 Act excluded dust diseases, except in the case of coal miners: s 4(c). So too did par (c) of the definition of "injury" in s 4(1) of the 1998 Act, which had carried through to the definition of "work injury damages" in s 250 of the 1998 Act when it was introduced by Sch 4 of the Workers Compensation Legislation Amendment Act 2001 No 61 (NSW) earlier in the same year.
4. The Court was not taken to any second reading speech in respect of the amendment made to s 140 in 2001. However, it might be noted that the second reading speech for that amending Act in the Legislative Assembly said only the following: "A further matter addressed in schedule 9 to the bill is the extension of the Uninsured Liability Indemnity Scheme to common law work injury damages. In cases where an employer is uninsured or cannot be found or identified, the bill authorises the injured worker to make a claim for work injury damages on the ULIS scheme. Given the capacity to recover such payments from employers, the initiative will assist with encouraging employers to take out insurance." (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 27 November 2001 at 18898) That passage is again notably silent on the longstanding distinction between dust diseases and general worker's compensation. In particular, the passage gives no support to the suggestion that in enacting s 140, Parliament intended to overcome the exclusion of dust diseases from the definitions of "injury" in the 1987 and 1998 Acts.
5. The Court was, however, taken to the second reading speech in the Legislative Council for the later Workers Compensation Amendment (Insurance Reform) Bill (2003), which made certain administrative amendments to the regime, including replacing six managed fund insurers with a single nominal insurer. In that context, the second reading speech stated: "The Bill improves the arrangements for workers whose employers are uninsured. Instead of uninsured claims being met by the Workers Compensation Authority Fund, it is proposed that these claims will now be met by the Nominal Insurer, drawing on the Insurance Fund. The Nominal Insurer will recover the costs of uninsured claims from employers. The intention is to simplify the arrangements governing uninsured liability and place workers whose employers are uninsured on a similar footing to other workers making claims. Workers whose employers are uninsured will have access to benefits and the dispute resolution procedures of the Workers Compensation Commission as soon as their claim is verified. Uninsured employers will continue to have the right to participate in dispute resolution concerning uninsured claims and will be a party to any matters dealt with in the Workers Compensation Commission. These arrangements will ensure that claims made by injured workers whose employers are uninsured are dealt with in a similar way to other claims, allowing these injured workers to receive benefits more quickly." (New South Wales Legislative Council, Parliamentary Debates (Hansard), 19 November 2003 at 5257; emphasis supplied.)
6. It might be noted, again, that there was no reference in this passage to the distinction between dust diseases and other forms of injury, which continued to feature in the definitions of "injury" in the 1987 and 1998 Acts at the time, as it still does. Nevertheless, as to legislative purpose, Mr Sako submitted that "What's important is the intent to extend a uniform protection to injured workers, not to have some able to get it, some not, some able to get it in some respects and others not." (Tcpt, 21 November 2024, 28/21)
7. While Mr Sako thus embraces the absence of any express reference in this passage to excluding dust diseases, given the longstanding separation of the regime for compensation for dust disease injuries from other workers compensation, the failure to advert to what was at the time an entrenched distinction is more consistent with a legislative intention not to disturb it than to obliterate it.
8. In any event, given the context in which the second reading speech was given, the words to which Mr Sako referred are better understood as being addressed to questions of funding and process rather than substantive rights: "The intention is to simplify the arrangements" and workers would "receive benefits more quickly".

Context: s 155(1A) of the 1987 Act

1. Mr Sako also relied on s 155 of the 1987 Act, which relevantly provides: 155 Compulsory insurance for employers (cf former s 18 (1), (5), (6)) (1) An employer (other than a self-insurer) shall obtain from a licensed insurer, and maintain in force, a policy of insurance that complies with this Division for the full amount of the employer's liability under this Act in respect of all workers employed by the employer and for an unlimited amount in respect of the employer's liability independently of this Act (but not including a liability for compensation in the nature of workers compensation arising under any Act or other law of another State, a Territory or the Commonwealth or a liability arising under the law of another country) for any injury to any such worker. Maximum penalty - 500 penalty units or imprisonment for 6 months, or both. … (1A) In subsection (1), injury includes a dust disease as defined in the Workers' Compensation (Dust Diseases) Act 1942 and the aggravation, acceleration, exacerbation or deterioration of a dust disease as so defined. …
2. Mr Sako frankly acknowledged the absence from s 140 of any provision akin to s 155(1A), which expressly includes within the employer's insurance obligation cover for dust disease injuries. He sought to overcome this difficulty by submitting that Pt 4 of the 1987 Act ("Uninsured liabilities", containing s 140) and Pt 7 ("Insurance", containing s 155) ought to be read together because of "the dichotomous, mirrored concepts of insurance and uninsurance". He relied on the parallel between the requirement in s 155(1) to insure "the full amount of the employer's liability under this Act", and the definition of "uninsured" in s 140(2), one limb of which turns on whether the employer has obtained a policy of insurance "for the full amount of the employer's liability under this Act". He also relied on other provisions of the 1987 Act, such as ss 151AB and 151AC, that make express provision with respect to insurance of dust disease liabilities. As to legislative purpose, he submitted that the uninsured liabilities scheme "is clearly intended to operate as a comprehensive safety net" that is engaged where an employer fails to fulfill its statutory obligation to take out the compulsory insurance mandated by s 155.
3. The construction for which Mr Sako contends is that the word "injury' in s 140(1) of the 1987 Act should be given "a corresponding meaning to the word injury as appears in s 155(1A)" (Tcpt, 21 November 2024, 31/30-41): in effect, that s 140 should be read as though the words in s 155(1A) were part of s 140. He then submits that the Court "would construe work injury damages by reference to that definition of injury": in effect, that the words "work injury damages" in s 140(1) of the 1987 Act should be read as though, insofar as the definition of "work injury damages" to be found in s 250(1) of the 1998 Act refers to "injury", s 250 contained the words in s 155(1A) of the 1987 Act. Particularly in light of the priority given to the 1998 Act by ss 2A(3) and 3(1AA) of the 1987 Act, to say that the legislature "missed its target" is, if correct, a very significant understatement.
4. A threshold difficulty with Mr Sako's submissions is that it does not follow from an acceptance that insurance and uninsurance are dichotomous concepts that Parliament's purpose in s 140 was to reverse the consequence of uninsurance in all cases. That s 140 engages with the problem of uninsurance begs the question how far Parliament intended to go in overcoming it. The Court's task is to construe the text of the statute, not a concept.
5. Contrary to Mr Sako's submissions, the proper use of the immediate statutory context provided by s 155(1A) is, if anything, to confirm the literal meaning of s 140. The fact that Parliament chose to include subs (1A) in s 155, but declined to make corresponding provision in s 140, indicates that Parliament was well aware that dust diseases were excluded from the general definition of injury in s 4, and chose to reverse that exclusion in s 155 but not in s 140.
6. That that is so is strongly supported by the history of the legislative provisions governing both access to the uninsured liabilities scheme and compulsory insurance. 1. Silicosis was not one of the industrial diseases covered by the Workmen's Compensation Act 1916 (NSW): see ss 5 and 12 and Sch 3. However, compensation for silicosis soon came to be separately covered pursuant to s 2 of the Workmen's Compensation (Silicosis) Act 1920 (NSW), which empowered the Minister to make provision for schemes of compensation. 2. From 1926, the regime for general workers compensation was governed by the Workers Compensation Act 1926 (NSW) (the 1926 Act). By s 6(1), "injury" was defined expressly to exclude "a disease caused by silica dust". 3. In 1942, the Workmen's Compensation (Silicosis) Act 1920 was repealed and replaced by the Workers Compensation (Silicosis) Act 1942 (NSW), which was subsequently renamed the Workers' Compensation (Dust Diseases) Act 1942, i.e., the 1942 Dust Act. 4. Also in 1942, the exclusion of silica dust diseases from the general regime continued when the 1926 Act was amended by the Workers' Compensation Act and Workmen's Compensation (Broken Hill) Act (Amendment) Act 1942 (NSW). That Act: 1. by s 2(a)(ii), replaced the definition of "injury" in s 6(1) of the 1926 Act as follows: "Injury" means personal injury arising out of or in the course of employment and includes a disease which is contracted by the worker in the course of his employment whether at or away from his place of employment and to which the employment was a contributing factor but does not, save in the case of a worker employed in or about a mine to which the Coal Mines Regulation Act, 1912-1941, applies, include a disease caused by silica dust; 1. by s 4(b), inserted a new s 18C into the 1926 Act which established the Uninsured Liability Scheme. 1. Thus, in the same year that the separate dust diseases regime was overhauled by the enactment of the 1942 Dust Act, the very legislation which originally established the Uninsured Liability Scheme confirmed the general exclusion of diseases caused by silica dust from that regime. In that context, the general statements (which did not specifically address dust diseases) made in the course of the Parliamentary debates with respect to the establishment of the Uninsured Liability Scheme in 1942 on which Mr Sako relies in his written submissions as suggesting a beneficial legislative intention do not assist him. 2. In its original form, the 1987 Act: 1. by s 4(c), maintained the exclusion of dust diseases from its definition of "injury"; 2. by s 139, constituted the Uninsured Liability and Indemnity Scheme; 3. by s 140(1), made provision for claims under the Scheme "in respect of an injury to a worker"; and 4. by s 149(1), abolished the worker's right to recover common law damages against the employer "in respect of an injury to the worker for which compensation is payable under this Act by that employer". 1. The effect of the exclusion of dust diseases from the definition of "injury" in the 1987 Act was that: 1. common law damages continued to be available for dust diseases claims against employers, but dust disease claimants had no access to the Uninsured Liability and Indemnity Scheme; 2. by contrast, common law damages were not available for other claims against employers, but non-dust disease claimants had access to the Scheme. 1. Also in 1987, the Workers Compensation (Dust Diseases) Amendment Act 1987 (NSW) amended the 1942 Dust Act by inserting a new s 8(5A), which provided: "The regulations under the [1987 Act] may require a policy of insurance under that Act to contain provisions in respect of the employer's liability independently of that Act for an injury (being a dust disease) to a worker under this Act." This corresponded functionally with s 155(1A) of the 1987 Act in its current form. It facilitated the consolidation of an employer's compulsory insurance cover in the one policy. But (and notwithstanding any conceptual dichotomy) it did so in circumstances in which dust disease claimants were excluded from the Uninsured Liability and Indemnity Scheme. 1. Section 155(1A) itself was inserted into the 1987 Act by the Workers Compensation (Benefits) Amendment Act 1989 (NSW). That Act also restored the right to common law damages in general (i.e., non-dust disease) claims. It was not suggested at the time that the insertion of s 155(1A) opened the door to the bringing of dust disease claims against the Scheme under s 140.
7. Since the uninsured liability scheme was first introduced it has consistently excluded dust disease claims. Section 155 deals with a separate topic: an employer's obligation to maintain insurance. There are sensible reasons for including all compulsory insurance obligations in the one provision (s 155), rather than scattering them across different Acts. Nothing in the text or context of s 155(1A), including its legislative history, supports collapsing the longstanding distinction, which s 140 expressly maintains, between dust disease and other claims for purposes of the uninsured liability regime.
8. That the scope of common law remedies is more generous to claimants for dust diseases than to claimants for other forms of workplace injury provides at least one explanation for the exclusion of dust disease claims from s 140. Given what would potentially be a large exposure of WCNI for uninsured dust diseases claims, it is not difficult to understand why Parliament might not choose to legislate to create such a liability.
9. More generally, a significant problem with Mr Sako's argument that s 140 is intended to create a comprehensive safety net - in effect, that the purpose of the uninsured liability regime is to treat workers equally - is that a worker's substantive rights to compensation already differ radically depending on the nature of the injury in the ways summarised above. Those differences in substantive rights also undermine Mr Sako's submission that "the vice of [WCNI's] construction is that it arbitrarily excludes workers suffering from dust diseases from the beneficial and remedial operation of s 140." In any event, the exclusion of dust diseases from the s 140 regime should not be seen as arbitrary in the sense of accidental or capricious, but rather as a deliberate policy choice. Whether the exclusion of dust diseases is appropriate as a matter of policy is a matter for Parliament.

Conclusion

1. The conclusion that s 140(1) excludes dust disease claims is required by the text, context and history of the legislative scheme.
2. It should not be accepted that Parliament's purpose in enacting s 140(1), or indeed s 155(1A), was the sweeping one identified by Mr Sako of creating "a comprehensive safety net". In particular, given the long history of separate regulation of general workers compensation and dust diseases, it should not be accepted that Parliament intended to obliterate the distinction between dust diseases and other injuries in cases where the defendant was uninsured. In this case, the best guide to Parliament's purpose is the language it chose to employ. The purpose of using the two defined terms "work injury damages" and "injury" in s 140(1) was clearly to exclude dust diseases from the uninsured liability regime.
3. But even if that were not so, having regard to the language of the statute it would be difficult consistently with principle to construe s 140(1) so as to give effect to the purpose Mr Sako asserts. As Leeming JA said in Wass at [5], "… courts may not rewrite a poorly drafted statute merely because it fails to achieve a clearly stated purpose. The question remains one of construction of the text enacted by the legislature. The real question arising in this litigation is whether it is possible and appropriate and in accordance with principle to give a legal meaning to the … statutory text which more closely accords with its purpose than what might be suggested by the literal meaning of the words 'at any time' in s 72A."
4. The definition of "injury" in s 4 of the 1987 Act, and the definition of "work injury damages" in s 250 of the 1998 Act (including the definition of "injury" in s 4 of the 1998 Act), provide the literal meaning for those terms as they appear in s 140(1). The principled path towards giving the statutory text a legal meaning that contradicted the express exclusion of dust diseases in those definitions is far from apparent.
5. It follows that the amendment to Mr Sako's statement of claim to plead s 140 was futile and should have been refused. Ground 2 in the draft notice of appeal is established. The order granting leave to file the amended statement of claim should be set aside and in lieu thereof the notice of motion should be dismissed.
6. Although there was some discussion at the hearing of the appeal about the statutory mechanism by which claims might be advanced against WCNI, in light of the conclusions reached above it is not appropriate to enter into that subject.

Costs

1. The court was informed that WCNI's position in the event that leave was granted and the appeal was allowed, was that WCNI: 1. did not oppose an order that it pay Mr Sako's costs of the application for leave to appeal and of the appeal; 2. did not seek to disturb the costs order made below, which was that costs of the motion be costs in the cause.
2. Given the nature of the litigation and the importance of the issue, that is the appropriate order as to costs.

Orders

1. The orders I propose are: 1. Grant leave to appeal with respect to Ground 2 in the draft notice of appeal and direct the applicant to file a notice of appeal within seven days. 2. Appeal allowed. 3. Order (2) made by Scotting J on 11 June 2024 be set aside. 4. In lieu thereof, order that the plaintiff be refused leave to file the draft Amended Statement of Claim annexed to his notice of motion. 5. The applicant pay the respondent's costs of the application for leave to appeal and of the appeal. 6. The application for leave to appeal otherwise be dismissed.
2. PRICE AJA: I agree with McHugh JA.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 February 2025