ACS v Secretary, Department of Communities and Justice - [2022] NSWPICPD 2

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	ACS v Secretary, Department of Communities and Justice [2022] NSWPICPD 2
APPELLANT:	ACS
FIRST RESPONDENT:	Secretary, Department of Communities and Justice
SECOND RESPONDENT:	State of New South Wales
THIRD RESPONDENT:	The GEO Group Pty Ltd
FIRST RESPONDENT’S INSURER:	Gallagher Bassett Services Pty Ltd
SECOND RESPONDENT’S INSURER:	Gallagher Bassett Services Pty Ltd
THIRD RESPONDENT’S INSURER:	QBE Worker’s Compensation (NSW) Limited
FILE NUMBER:	A1-673/21
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
DATE OF APPEAL DECISION:	10 January 2022
ORDERS MADE ON APPEAL:	1. The monetary thresholds in s 352(3) of the Workplace Injury Management and Workers Compensation Act 1998 are not satisfied, and there is no right of appeal.
CATCHWORDS:	WORKERS COMPENSATION – proceedings in respect of Part 2A of the Civil Liability Act 2002 – special provisions for offenders in custody – monetary threshold to appeal a decision of a Member required by s 352(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) – section 4 of the 1998 Act – definition of “compensation”
HEARING:	On the papers
REPRESENTATION:	Appellant:
Ms M Campbell, counsel
Brydens Lawyers Pty Ltd
First Respondent:
Ms J Graham, solicitor
Crown Solicitor’s Office
Second Respondent:
Ms J Graham, solicitor
Crown Solicitor’s Office
Third Respondent:
Mr J McGrath, solicitor
Sparke Helmore Lawyers
DECISION UNDER APPEAL
SENIOR MEMBER:	Mr G Capel
DATE OF SENIOR MEMBER’S DECISION:	26 March 2021

INTRODUCTION AND BACKGROUND

This appeal concerns an application filed in the former Workers Compensation Commission by ACS for an assessment of the degree of permanent impairment in respect of a psychological injury sustained by him on 28 July 2016. [Redacted]
The appellant had commenced proceedings in the District Court of NSW, claiming damages pursuant to s 26D of the Civil Liability Act 2002. Part 2A of the Civil Liability Act makes special provisions in respect of offenders in custody, which apply to the appellant, and provide for an application by an offender to the District Court for an award of “personal injury damages.”[1] Section 26C of the Civil Liability Act precludes an award of damages in respect of the assessment of permanent impairment unless the degree of permanent impairment is at least 15%. In this case, the defendants – the Secretary, Department of Communities and Justice, the State of New South Wales and the GEO Group Pty Ltd (the respondents in these proceedings) – disputed that the appellant reached the necessary 15% permanent impairment, and so the assessment of the appellant’s impairment was required to be assessed by an approved medical specialist (AMS) appointed by the then Workers Compensation Commission in accordance with Part 7 of Chapter 7 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
[1] Sections 26A and 26B of the Civil Liability Act.
An appointment with an approved medical assessor was arranged, however, an issue arose as to whether closed circuit television (CCTV) footage attached to the appellant’s application should be included in the referral to the AMS.
On 1 March 2021, the Workers Compensation Commission was abolished by operation of cl 3 of Div 2 of Pt 2 of Sch 1 to the Personal Injury Commission Act 2020 (the 2020 Act). The matter then became one within the Workers Compensation Division of the Personal Injury Commission (the Commission) from that date[2] and the matter was allocated to a senior non-presidential member of the Commission. The Senior Member issued a Certificate of Determination – Consent Orders dated 16 March 2021, referring the matter to an AMS appointed by the Commission, but excluding the CCTV footage, subject to any further submissions from the parties.
[2] Section 12(1) of Div 2.3 of Pt 2 of the 2020 Act.
The appellant provided written submissions to the Senior Member, supported by extracts from the CCTV footage on 22 March 2021, and written submissions opposing the inclusion of the footage were filed by the third respondent on 23 March 2021. The first two respondents indicated that they relied upon the third respondent’s submissions.
On 26 March 2021, the Senior Member issued a further Certificate of Determination supported by reasons, in which he determined that the CCTV footage would be excluded from the referral.
The appellant appeals that decision.
The third respondent filed a Notice of Opposition to the appeal on 11 May 2021. The first and second respondents advised the Commission by email sent on 2 June 2021 that they wished to rely upon the submissions made by the third respondent in the appeal, as they had done in the substantive proceedings.

ON THE PAPERS

Section 52(3) of the 2020 Act provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Both parties have indicated that they are content for the appeal to be determined on the basis of the written material before the Commission. I have had regard to Procedural Directions PIC2 and WC3, the documents that are before me, including the submissions made in response to the Directions discussed below as well as the submissions by the parties that the appeal can proceed to be determined on the basis of these documents. I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirement as to time pursuant to s 352(4) of the 1998 Act has been met. It is common ground between the parties that the decision of the Senior Member was interlocutory in nature and, in accordance with s 352(3A) of the 1998 Act, there can be no appeal without the leave of the Commission.
Section 352(3) of the 1998 Act provides that there can be no appeal against a decision of a non-presidential member unless the “the amount of compensation at issue on appeal” is at least $5,000.00, and at least 20% of the amount awarded in the decision appealed against.
The appellant’s submissions filed with the Appeal Against Decision of a Member (appeal) were silent as to whether the threshold requirements to appeal were satisfied. As a consequence, on 22 April 2021, a delegate of the President issued a Direction to the appellant, directing the appellant to (among other things) file amended submissions providing full details of the monetary amount at issue on the appeal and whether the threshold to appeal in s 352(3) of the 1998 Act was satisfied.
The appellant filed amended submissions on 23 April 2021. In relation to the issue of the monetary threshold to appeal, the appellant submitted:
“The Applicant submits that this appeal application satisfies the monetary threshold requirement as per section 352 (3) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW). Pursuant to s 26C Civil Liability Act 2002 (NSW), the applicant would not be entitled to any damages unless his permanent impairment is assessed at or more than 15% of whole person impairment. As the CCTV footage is the only relative and necessary objective evidence of the subject accident, it will be determinative to the Applicant’s permanent impairment assessment, and thus determinative as to whether the Applicant will be entitled to damages at all. Should the Applicant be entitled damages, pursuant to s16 of the Civil Liability Act the range of damages for non-economic loss are likely to be between 26% to 29% of the most extreme case, which is currently $55,000 to $125,500. The claimant will also be entitled to past and future out-of-pocket expenses and past and future economic loss. Such damages will exceed $5,000.”
The third respondent filed a Notice of Opposition to Appeal Against Decision of a Member (opposition) on 11 May 2021. The third respondent indicated that it disputed that the appellant reached the necessary threshold. It submitted:
“As the Respondent disputes that the Appellant has reached that threshold requirement, the Appellant’s entitlement to any substantive compensation is limited by the assessment by an AMS through the process of the Personal Injury Commission (PIC).
The Appellant argues that the Appellant’s entitlement to compensation (which is contended will be greater than $5,000) is dependent on the assessment by the AMS and therefore he meets the monetary threshold requirements set out in section 352 of [the 1998 Act] above. This argument is self-availing and presupposes that what is contained in the CCTV footage will be determinative in leading the AMS to somehow preferring the Appellant’s psychiatric evidence over the Respondent’s. This is a non-sequitur and the reasons accompanying the determination of Senior Member Capel give a fair indication why that is most unlikely to be the case. With respect, the Appellant is not in a position to show the necessary linkage between the acceptance/rejection of the CCTV footage with the plaintiff satisfying the s 26(c) threshold issue to make the submission that the issue satisfies s.352(3) of [the 1998 Act]. The monetary value (if any) of this interlocutory appeal point is at best unknowable. The onus nevertheless resides with the Appellant and the Commission cannot currently be satisfied.
In any event, the Respondent asserts that even if the Appellant is somehow able to meet the monetary threshold requirement (not conceded here), the appeal is not necessary or desirable for the proper and effective determination of the dispute as the CCTV footage is neither relevant nor probative for the assessment by an AMS for all the reasons identified by Senior Member Capel, and will unnecessarily delay matters and escalate the parties’ costs.”[3]
[3] Third respondent’s submissions, [8]–[10].
The first and second respondents indicate that they rely upon the third respondent’s submissions.
I formed the view that, despite the Direction issued by the Delegate of the President, the parties’ submissions did not adequately address the requirement that the amount of compensation at issue exceeds $5,000.00. I therefore issued a Direction on 29 November 2021, directing the parties to file further submissions addressing the following authorities:
(a)    NSW Department of Education and Communities v Colefax;[4]
(b)    O’Callaghan v Energy World Corporation Ltd;[5]
(c)    Abu-Ali v Martin-Brower Australia Pty Ltd,[6] and
(d)    Anderson v Secretary, Department of Education.[7]
[4] [2012] NSWWCCPD 63 (Colefax).
[5] [2016] NSWWCCPD 1 (O’Callaghan).
[6] [2017] NSWWCCPD 25 (Abu-Ali).
[7] [2018] NSWWCCPD 32 (Anderson).

The appellant’s submissions

In response to the Direction, the appellant filed submissions dated 2 December 2021. The appellant submitted that his claim was a claim for damages and asserted that the term “compensation” was not defined in either the 1998 Act or the Workers Compensation Act 1987 (the 1987 Act), so that where the term is used in s 352 of the 1998 Act, it should be given its ordinary meaning. The appellant says that this is particularly the case because only Pt 7 of Chapter 7 of the 1998 Act applies, and that Part does not define the term “compensation.”
The appellant contends that the damages he seeks are compensatory and are therefore compensation within the meaning of the section. The appellant refers to Anderson and Lotos Concretors Pty Ltd v Mitchell,[8] which both dealt with appeals where no compensation was awarded. The appellant submits that he is not barred from appealing the Senior Member’s decision simply because no award was made, and what is required is that the decision of the Senior Member has the real capacity to affect an amount of damages of at least $5,000 and at least 20% of the amount to be awarded in the decision appealed against. The appellant asserts that, since his entitlement is currently “nothing,” then he comfortably satisfies the provision.
[8] [2018] NSWWCCPD 16 (Mitchell).
The appellant submits that Colefax has no application in this matter because the appellant is not entitled to the “traditional benefits” referred to as compensation in the 1998 Act. The appellant refers to the definition of “decision” provided for in s 352(8) of the 1998 Act, which he says involves matters that could never relate to what is traditionally described as compensation. The appellant asserts that O’Callaghan also has no application because the worker was pursuing a potential work injury damages claim and was not a claim for compensation, unlike in this matter where the appellant is claiming damages as compensation.
The appellant contends that, in Abu-Ali, the worker was seeking an assessment of impairment in order to determine whether he was a worker with high or highest needs within the meaning of s 32A of the 1987 Act, which would entitle him to certain compensation under the legislation. The appellant says that there was no amount claimed and no amount directly at issue before the decision-maker and Snell DP determined that the threshold was not met. The appellant asserts that Abu-Ali has no application, as, once again, the appellant in this case is claiming compensatory damages.
The appellant submits that Anderson, which involved an application for an assessment by an AMS in order to pursue a potential claim, is also not applicable to this case because the worker’s entitlements had not crystalised, and might not have done so, so that there was no real capacity to put the required amount in issue.
The appellant submits that, although the authorities provide some guidance, they are factually different from this case. The appellant identifies Mitchell as involving a similar application, in that the worker in that case was seeking an assessment of the level of his impairment and, although no amount of compensation was initially claimed, the worker was seeking to have set aside earlier consent orders that involved compensation totalling $35,000. The appellant noted that, because of the underlying claim for $35,000, the threshold was satisfied.
The appellant refers to s 149 of the 1998 Act, which defines damages as any form of monetary compensation but not compensation under the 1998 Act. The appellant says that the second reading speech of the Civil Liability Amendment (Offender Damages) Bill 2004 referred to damages and compensation interchangeably. The appellant asserts that the Minister for Justice said that damages for non-economic loss was limited to the equivalent statutory compensation that was payable for a work-related injury. The appellant submits that an offender within the meaning of the Civil Liability Act is not eligible for any compensation under the 1998 Act.
The appellant advises that he has proceedings on foot in the District Court for damages and the court cannot award damages unless the degree of permanent impairment, of which there can only be one assessment, is assessed at being 15% (ss 26C and 26D of the Civil Liability Act). The appellant submits that compensation in accordance with s 352(3) of the 1998 Act includes damages referred to in Part 2A of the Civil Liability Act. The appellant contends that, if this was not the case, the provisions of the Civil Liability Act would have no work to do.
The appellant submits that an offender is not entitled to the weekly payments or a lump sum for permanent impairment that a worker is entitled to under the workers compensation legislation and an offender will only be entitled to one permanent impairment assessment of his injuries. He contends that the intention of parliament and the purpose of Part 2A of the Civil Liability Act was not to prevent an offender from having an avenue to appeal from a decision of a Member simply because the offender was claiming damages.
The appellant asserts that his underlying claim is a claim for compensation in excess of $5,000, as damages will only be awarded if his assessment reaches the necessary 15% permanent impairment threshold. The appellant points to s 26D, which requires an offender to provide a medical report assessing his impairment as 15%, which is the same requirement that is applicable to a worker. The appellant says that he has provided such a report, in which he was assessed as suffering a 17% permanent impairment and, under s 66 of the 1987 Act would entitle him, were he a worker, to $25,300. The appellant adds that under the Civil Liability Act, the District Court will apply s 16 of the Civil Liability Act to determine his non-economic loss, which would be in the order of $12,000 if his permanent impairment is assessed at 17%.
The appellant asserts that, on any view, a review of the requirement of s 352(3)(a) is satisfied. The appellant further asserts that it is imperative that the evidence sought to be adduced is before the AMS in order to ensure the matter is properly determined. The appellant concludes that the requisite amount of compensation is in issue in the appeal and thus the appellant satisfies the necessary threshold.

The respondents’ submissions

The first and second respondents advised the Commission by email that they adopted and relied upon the third respondent’s submissions.
The third respondent filed submissions in response to my Direction. In those submissions, the third respondent referred to itself as the first respondent. I determined that it was unnecessary for the submissions to be amended to reflect the correct respondent as it was abundantly clear that the submissions were those of the third respondent.
The third respondent asserts that, contrary to the appellant’s submission, the term “compensation” is defined in s 4 of the 1998 Act as “compensation under the Workers Compensation Acts,” which includes the 1987 Act. The third respondent adds that it is apparent that s 149 of the 1998 Act makes a clear distinction between “damages” and “compensation” and that damages are excluded from “compensation under this Act.”
The third respondent refers to Part 2A of the Civil Liability Act and submits that s 26D(3) of that Act clearly provides that any assessment under Part 7 is, without limitation, to be made in accordance with the 1998 Act. It submits that the decision in O’Callaghan confirms this to be the case. The third respondent contends that the appellant’s submissions are predicated upon the notion that there is no distinction between damages and compensation. It submits that such an assumption is wrong and, had it been the intention of parliament that s 352(3) of the 1998 Act would apply in respect of a claim for damages, such an intention would have been expressed in the words of the section. The third respondent submits that the appellant cannot succeed in meeting that threshold.
The third respondent refers to the appellant’s submission that, because he has an assessment of 17% permanent impairment, he would be entitled to $12,000, so that the threshold is satisfied. The third respondent says that the provision of an assessment is a condition precedent to a referral to an AMS and does not constitute an entitlement to compensation under the Civil Liability Act. It submits that, in any event, this appeal does not concern an entitlement, it concerns the inclusion of the CCTV footage in the referral to the AMS.
The third respondent refers to the authorities listed in the Direction, and submits that, except for Colefax, all concern a referral of a claimant to an AMS for an assessment to be made as to whether the threshold is met in order to proceed with a claim for compensation or damages. The third respondent submits that in each of those cases, it was determined that the threshold to appeal was not satisfied because the compensation at issue on the appeal was not greater than $5,000. It submits that, in each of the cases, the award of damages could potentially exceed the monetary amount, however, the proceedings were not directly relevant to the award of compensation or damages.

The third respondent describes the approach taken in the authorities as a “narrow construction” of the requirement to meet the monetary threshold and asserts that there is no proper basis to expand the construction in the manner proposed by the appellant. It submits that it is clear that, where there is no direct link to the payment of compensation or damages, which is the case in this appeal, there can be no appeal. The third respondent says that it is relevant that this case concerns the inclusion of CCTV footage, the subject of the appeal is an interlocutory decision, and a determination of the appeal would not result in any payment of compensation or award of damages.
The third respondent refers to Colefax, which concerned the provision of suitable duties to the worker, and it was argued that the monetary threshold had been met because the decision had the capacity to affect the worker’s ability to derive an income. The third respondent quotes from Keating P’s observation that “[t]he application before the Commission does not involve a dispute as to the worker’s entitlement to weekly compensation and there has been no determination made by the Commission on that issue.”[9] The third respondent refers to Keating P’s further observation that in that matter, which involved a workplace injury management dispute about the failure to provide suitable duties, because there was no amount of compensation claimed in the application, there was no amount of compensation at issue on the appeal.
[9] Colefax, [22].
The third respondent submits that the same principle applies in this case. That is, the mere fact that the appeal could impact other decisions which might affect the worker’s ability to recover compensation entitlements is not sufficient to satisfy the monetary threshold to appeal. The third respondent submits that it is not sufficient that the outcome of the appeal has the ability to affect the assessment made by the AMS which may then impact the appellant’s entitlement to claim damages under the Civil Liability Act.
The third respondent refers to O’Callaghan, which it says was a case involving an appeal from an AMS in order to meet the threshold to bring a work injury damages claim. It submits that the facts in that case were very similar to the present matter. The third respondent submits that O’Callaghan cannot be distinguished from the present case, the decision is directly on point, and binding authority. The third respondent asserts that, in fact, the present case is even less directly related to a payment of compensation or damages, as this appeal merely relates to what information should be included in the referral to an AMS.
The third respondent says that the decision of Abu-Ali was an application for assessment by an AMS for the purpose of ascertaining whether the appellant met certain threshold requirements in order to be entitled to additional compensation under the legislation. The third respondent submits that the facts of this case are similar to those in Abu-Ali and Abu-Ali is directly on point. That is, the issue on appeal was not determinative of whether the appellant was entitled to additional compensation, it was merely a step in the process. The third respondent submits that, in the present matter, whether the CCTV footage is referred to the AMS is not determinative of whether the appellant will be entitled to damages, it is merely a step in the process.
The third respondent asserts that, consistent with the reasoning in Abu-Ali at [18]–[22], the fact that the consequential effect of the order might result in an award of damages is not sufficient to satisfy the monetary threshold requirement of s 352(3) of the 1998 Act. The third respondent contends that if the appeal were to succeed, it would not result in any award of compensation, which is again consistent with Abu-Ali.
The third respondent cites Anderson as a further case where the appellant sought a referral to an AMS for an assessment which would determine whether the appellant met the necessary threshold for further compensation.
The third respondent submits that the appellant in this case seeks to distinguish those authorities because, in the present matter, the appellant is claiming “compensatory damages.” The third respondent asserts that the question is not one of whether the appeal can somehow affect the appellant’s entitlement to claim compensation. The third respondent refers to the observation made by me in Anderson at [81] and notes that the appellant in that case was unsuccessful because there was no amount of compensation claimed at first instance and therefore there was no amount at issue on appeal. The third respondent refers to Sheridan v Coles Supermarkets Australia Pty Ltd,[10] which is authority to say that the term “at first instance” is a reference to the matter before the non-presidential member and not any underlying proceedings. The third respondent submits that the appellant is wrong to assert that the amount at issue on appeal is the amount of damages sought by the appellant in the District Court proceedings.
[10] [2003] NSWWCCPD 3.
The third respondent also refers to Mitchell, which it says has greater similarity to the present matter, and submits that there were two issues in Mitchell, namely whether the Certificates of Determination issued in the matter should be set aside and whether the worker should be referred for assessment by an AMS. The third respondent points out that in Mitchel the Certificate of Determination, which the worker was seeking to have set aside, provided for payment of $35,000 by way of lump sum compensation, so that it was clearly apparent that s 352(3)(a) was satisfied. The third respondent contends that the reasoning in Mitchell cannot be applied to this case and the appellant is wrong.
In conclusion, the third respondent submits that, on the basis of the above authorities, s 352(3) can only be satisfied where there is a clear link between the appeal and compensation greater than $5,000 and it is not sufficient that the appellant has underlying proceedings on foot seeking damages greater than $5,000. The third respondent adds that the fact that the appellant is only entitled to one assessment and considers it imperative that the CCTV footage be included in the referral to the AMS is irrelevant and does not overcome the threshold requirements of s 352(3).

THE LEGISLATION

Section 3 of the Civil Liability Act defines “damages” as including
“any form of monetary compensation but does not include—
(a)    any payment authorised or required to be made under a State industrial instrument, or
(b)    any payment authorised or required to be made under a superannuation scheme, or
(c)    any payment authorised or required to be made under an insurance policy in respect of the death of, injury to or damage suffered by the person insured under the policy.”
Division 2 of Part 2 provides for the fixing of damages in personal injury damages claims in respect of both economic and non-economic loss. In particular, s 16 provides:
“16    Determination of damages for non-economic loss
(1)     No damages may be awarded for non-economic loss unless the severity of the non-economic loss is at least 15% of a most extreme case.
(2)     The maximum amount of damages that may be awarded for non-economic loss is $350,000, but the maximum amount is to be awarded only in a most extreme case.
(3)     If the severity of the non-economic loss is equal to or greater than 15% of a most extreme case, the damages for non-economic loss are to be determined in accordance with the following Table—
…”.
Part 2A of the Civil Liability Act makes special provision for offenders in custody. There is no dispute that the provisions apply to the appellant. Section 26A defines “personal injury damages” to mean damages that relate to the death of or injury to a person.
Section 26C provides that:
“No damages may be awarded (whether for economic or non-economic loss) unless the injury results in the death of the offender or in a degree of permanent impairment of the offender that is at least 15%.”
Section 26D contains the following provisions in respect of the assessment of the permanent impairment:
“26D Assessment of permanent impairment
(1) The degree of permanent impairment that results from an injury is to be assessed as provided by this Part and Part 7 (Medical assessment) of Chapter 7 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 WC Act).
(2) Part 7 of Chapter 7 of the 1998 WC Act extends to an assessment of degree of permanent impairment for the purposes of this Part and for that purpose applies as if—
(a) an assessment under this Part were an assessment under and for the purposes of that Part of the 1998 WC Act, and
(b) a reference in that Part of the 1998 WC Act to a worker were a reference to an offender, and
(c) a reference in that Part of the 1998 WC Act to a worker’s employer were a reference to the Crown, and
(d) section 330 (Costs of medical assessment) of the 1998 WC Act were omitted from that Part, and
(e) a reference in that Part to the WorkCover Guidelines were a reference to guidelines issued under subsection (2A), and
(f) the provisions of that Part applied with such other modifications as may be prescribed by the regulations.”
Section 4 of the 1998 Act defines “compensation” as meaning “compensation under the Workers Compensation Acts, and includes any monetary benefit under those Acts.”
Section 149 of the 1987 Act defines “Damages” for the purpose of Part 5 (provisions relevant to common law remedies) and provides:
“149 Definitions
(1) In this Part—
damages includes—
(a) any form of monetary compensation, and
(b) without limiting paragraph (a), any amount paid under a compromise or settlement of a claim for damages (whether or not legal proceedings have been instituted),
but does not include—
(c) compensation under this Act, or
(d) additional or alternative compensation to which Division 8 of Part 3 applies, or
(e) an award of compensation or direction for compensation under Part 2 or Part 4 of the Victims Compensation Act 1996, or
(f) a sum required or authorised to be paid under a State industrial instrument, or
(g) any sum payable under a superannuation scheme or any life or other insurance policy, or
(h) any amount paid in respect of costs incurred in connection with legal proceedings, or
(i) damages of a class which is excluded by the regulations from this definition.”

CONSIDERATION

The claim before the Senior Member was an application for referral to an AMS for assessment of the appellant’s permanent impairment in order to determine whether the appellant’s permanent impairment satisfied the necessary threshold to pursue a claim for damages in the District Court, in accordance with s 26D of the Civil Liability Act. Part 2A of the Civil Liability Act makes special provision for offenders in custody. There is no dispute that the provisions apply to the appellant.
The question arises as to whether the relief sought by the appellant in his Statement of Claim, which is described in those pleadings as “damages”, constitutes “compensation” for the purpose of satisfying the threshold to appeal the Senior Member’s decision as required by s 352(3) of the 1998 Act.
The appellant argues that the CCTV footage is probative evidence of the circumstances of the injury. Whether it is or is not probative has no relevance to the question of whether the appellant meets the monetary threshold in order to appeal the Senior Member’s decision.
The appellant seeks to distinguish each of the authorities referred to in my Direction. The appellant points to the distinctions as being, in his case, that he is not seeking “traditional benefits,” he is currently entitled to nothing, he is seeking “compensatory” benefits which would satisfy the threshold and he is not pursuing a work injury damages claim. All of those matters may be the case but do not assist the appellant. Describing the benefit he is seeking as “compensatory” does not change the character of the monetary benefit he is seeking from the District Court and does not elevate it to the level of compensation within the meaning of the workers compensation legislation.
The appellant contends that, in Abu-Ali, there was no amount claimed, and in Anderson, the worker’s rights had not “crystalised.” The rights of the appellant in this case are no different. He has not claimed an amount of compensation and on the appellant’s own submission, his rights to claim damages do not “crystalise” until he meets the 15% permanent impairment threshold.
The appellant asserts that the word “compensation” is not defined in either the 1987 or 1998 Act. The word is clearly defined in s 4 of the 1998 Act for the purposes of both the 1987 Act and the 1998 Act and means compensation under those Acts.
Section 352(3)(a) clearly refers to “the amount of compensation” at issue on the appeal. It has long been accepted that, in circumstances where there is no monetary award made by the Member, the threshold question is to be determined by reference to the amount of the claim as particularised by the applicant.[11] This appears to be common ground between the parties.
[11] Grimson v Intergral Energy [2003] NSWWCCPD 29, [30].
In this case, the appellant did not particularise an amount of compensation claimed or seek an order for compensation or any other monetary payment, however described. In the proceedings before the Senior Member, he was clearly not claiming compensation in the form of weekly payments, treatment expenses or a lump sum and the proceedings were limited to seeking an assessment in accordance with Part 7 of Chapter 7 of the 1998 Act. If he succeeded in reaching the necessary threshold, then his claim for damages would proceed in the District Court. That is, any monetary amount he would be seeking was not within the jurisdiction of the Personal Injury Commission. Whether the appellant would be entitled to an amount exceeding $5,000 pursuant to s 66 of the 1987 Act were he a “worker” is irrelevant. He is not a “worker” under the legislation and has no such entitlement.
The definition of damages provided for in s 149 of the 1987 Act is limited to being for the purpose of “this Part”, which is Part 5 (common law remedies). Part 5 deals with:
(a)    claims for damages against a worker’s employer that was caused by the negligence of the workers employer;
(b)    the requirement to deduct compensation paid from any award of damages, and
(c)    the limitations on damages to be awarded (including the requirement that the permanent impairment is at least 15%).
Thus, the definition of damages contained in s 149 does not deal with damages claimed in accordance with Part 2A of the Civil Liability Act (special provisions for offenders in custody) but that does not assist the appellant.
It is further irrelevant that in the second reading speech of the Civil Liability Amendment (Offender Damages) Bill 2004, the Minister for Justice used the terms “damages” and “compensation” interchangeably. The issue in these proceedings is whether any monetary benefit sought by the appellant satisfied the definition of compensation as defined by the workers compensation legislation.
Section 4 of the 1998 Act defines “compensation” as meaning “compensation under the Workers Compensation Acts and includes any monetary benefit under those Acts.” The “compensation” referred to by the appellant is not, therefore, compensation under the 1987 or 1998 Act, regardless of the fact that the definition of damages contained in s 149 only applies to Part 5 of the 1987 Act. The amount of monetary benefit sought by the appellant is not prescribed or assessed under the workers compensation legislation. If the appellant reaches the necessary 15% permanent impairment, his entitlement will be assessed in accordance with the Civil Liability Act. That entitlement does not fall within the definition of compensation provided in s 4 of the 1998 Act and cannot satisfy the monetary thresholds pursuant to s 352(3) of the 1998 Act.
It follows that this appeal does not satisfy the monetary threshold pursuant to s 352(3) of the 1998 Act and there is no right to appeal the Senior Member’s Certificate of Determination.

DECISION

The monetary thresholds in s 352(3) of the Workplace Injury Management and Workers Compensation Act 1998 are not satisfied, and there is no right of appeal.

Elizabeth Wood
DEPUTY PRESIDENT

10 January 2022