Briggs v Wachs - Pilbara (Hedland Health Campus)
[2018] WADC 73
•1 JUNE 2018
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: BRIGGS -v- WACHS - PILBARA (HEDLAND HEALTH CAMPUS) [2018] WADC 73
CORAM: JUDGE TROY
HEARD: 18 MAY 2018
DELIVERED : 1 JUNE 2018
FILE NO/S: APP 3 of 2018
BETWEEN: DAVID PRESTON BRIGGS
Appellant
AND
WACHS - PILBARA (HEDLAND HEALTH CAMPUS)
Respondent
ON APPEAL FROM:
Jurisdiction : WORKERS' COMPENSATION ARBITRATON SERVICE (WA)
Coram: ARBITRATOR EKANAYAKE
File Number : A 44855 of 2017
Catchwords:
Workers' compensation - Appeal - Error of law - Travel expenses - Proper construction of sch 1 cl 17(1aa), cl 19(3A)
Legislation:
Workers' Compensation and Injury Management Act 1981 (WA) s 3L, s 146, sch 1 cl 17, cl 17(1aa), c19, cl 19(3A)
Result:
Appeal dismissed
Representation:
Counsel:
| Appellant | : | Mr M J Lourey |
| Respondent | : | Mr J R Ludlow & Mr M J Thickett |
Solicitors:
| Appellant | : | Chapmans Barristers & Solicitors |
| Respondent | : | HWL Ebsworth Lawyers |
Case(s) referred to in decision(s):
Amos v Brisbane City Council [2018] QCA 11
Bank Officials' Association (SA Branch) v Savings Bank of South Australia (1923) 32 CLR 276; [1923] HCA 25
Barker v Edger [1898] AC 748
Blackpool Corporation v Starr Estate Co (1922) 1 AC 27
Goodwin v Phillips [1908] HCA 55; (1908) 7 CLR 1
Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566
Perpetual Executors & Trustees Association of Australia Ltd v Commissioner of Taxtion (Cth) (1954) 88 CLR 434
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
The Commonwealth v Baume [1905] HCA 11; (1905) 2 CLR 405
JUDGE TROY:
Introduction
The respondent employer employed Mr David Briggs as a registered nurse. In March 2016, Mr Briggs was assaulted at work as a result of which he suffered an injury to his left shoulder. The respondent accepted liability. In February 2017 Mr Briggs drove from South Hedland to Perth and back to see an approved medical specialist, Dr Cordova. Is the respondent obliged to pay his vehicle running expenses, together with meals and accommodation in the sum of $1,996.08?
In order to answer that question it is necessary to determine which clause of sch 1 of the Workers' Compensation and Injury Management Act 1981 (WA) applies. Mr Briggs contends that cl 19(3A) applies whereas the respondent submits that it is cl 17(1aa).
It is common ground that when Mr Briggs travelled to see Dr Cordova he did so for the purposes of s 93L of the Act, to pursue or preserve a common law entitlement.
Mr Briggs' attendance on Dr Cordova was for evaluation of his degree of permanent whole of person impairment for the purposes of pt IV div 2 subdivision 3. This part includes s 93L.
As is well known, pt IV div 2 of the Act operates as a statutory constraint on the awarding of common law damages against an employer applying to an injury caused by the negligence, or other tort, of the relevant employer. It does so in circumstances where workers' compensation has been paid or would have been paid were it not for some misconduct by the worker. That constraint limits access to common law damages only to those workers who have a minimum degree of whole of person impairment.
Under the scheme that applies to Mr Briggs, if weekly payments are claimed in respect of the relevant injury, then prior to the 'termination day' (as defined by s 93L(1) and s 93M), a worker can elect to preserve the right to pursue an award of common law damages: s 93L(4). That is so provided that the worker and their employer have agreed, or the worker has been assessed, as having a whole person impairment of not less than 15%; or not less than 25%: s 93L(2)(a).
The 'termination day' is generally set as being one year after the date on which the claim for weekly payments was made: s 93M(1). It can be extended by up to one year if there is certification that the worker's condition has not stabilised enough for a 'normal evaluation' of the whole person impairment to be performed: s 93M(4)(a).
As s 146H(1) makes clear, an approved medical specialist such as Dr Cordova may be required to make an assessment of a worker for a number of reasons. It might be for the purposes of pt III div 2A: s 146B. This relates to the new regime for lump sum payments for specified injuries as set out at s 31A to s 31K.
It might be for the purposes of pt IXA: s 146D. This relates to specialised retraining programs as set out at s 158 to s 158L.
It might be for the purposes of cl 18A: s 146E. This relates to expenses exceeding those provided by cl 17(1).
It might be for the purposes of pt IV div 2 subdivision 3: s 146C. As noted, this part includes s 93L.
Whatever the purpose, the approved specialist is required to give to the worker and the employer a written report of the worker's degree of impairment, including details of the assessment and reasons justifying the assessment and a certificate specifying the worker's degree of impairment: s 146H(1).
Following his assessment, Dr Cordova provided an opinion that Mr Briggs' termination day should be extended because his condition had not stabilised to the extent required for a normal evaluation as provided for by s 146H(2)(b).
The issues that I must resolve are these:
•Was Mr Briggs' appointment with Dr Cordova for the purposes of cl 19(3A) or for cl 17(1aa) or for both?
•Is there any inconsistency between cl 17(1aa) and cl 19(3A)?
•Is cl 17(1aa) a specific provision which must be read as proviso to the general provision?
•Does cl 19(3A) deal expressly with the travel requirements, whilst cl 17(1aa) deals with the recovery of reasonable expenses so that cl 17(1aa) merely directs the reader of the Act to cl 19(3A) which provides for the associated travel and other expenses?
•Does cl 19(3A) render the last part of cl 17(1aa) inapplicable (despite it not being deleted) by superseding it?
The reason for Mr Briggs' appointment with Dr Cordova
I am satisfied that the purpose of Mr Briggs' appointment with Dr Cordova was evaluation of a worker's degree of permanent whole of person impairment for the purposes of pt IV div 2 subdivision 3, specifically whether there existed a whole person impairment of not less than 15%; or not less than 25% as provided for by s 93L.
It was, therefore, an attempt at an assessment that resulted in a finding that Mr Briggs' condition had not stabilised to the extent required for a normal evaluation as defined in s 146C to be made.
By operation of cl 17 as a whole, and specifically cl 17(1aa), Mr Briggs was entitled to reasonable expenses incurred or likely to be incurred in respect of that attendance so as to engage cl 17(1aa).
Given that Mr Briggs travelled for his degree of impairment to be assessed by an approved medical specialist he was entitled under cl 19(3A) to vehicle running expenses and reasonable cost of meals and lodging.
Accordingly, Mr Briggs' attendance on Dr Cordova engages both cl 17(1aa) and cl 19(3A).
Is there any inconsistency between cl 17(1aa) and cl 19(3A)?
If there is a conflict between cl 17(1aa) and s 19(3A) I must endeavour to resolve it.
Clause 17(1aa) provides that a worker can claim for certain specified expenses for his/her first assessment or attempt at an assessment for the purposes of s 93L (which this was) but not including the cost of any travel, meals, or lodging.
Clause 19(3A) provides that where a worker travels for his/her degree of impairment to be assessed by an approved medical specialist the employer is liable to pay the worker's vehicle running expenses, reasonable fares and expenses and reasonable cost of meals and lodging.
The relationship between these two clauses has not been considered either by the District Court or on appeal to the Court of Appeal.
Although there is an apparent inconsistency between the wording of the two clauses that is capable of resolution either because, as Mr Briggs contends, cl 19(3A) deals expressly with the travel requirements, whilst cl 17(1aa) read with the preamble to cl 17 deals with the recovery of reasonable expenses. Alternatively, as the respondent maintains, if one clause is construed as a specific provision which must be read as proviso to the general provision.
What was the intent and purpose of the amendment inserting s 19(3A)?
I note that on 26 March 2009, the Minister for Commerce supported WorkCover WA undertaking a review of Western Australia's workers' compensation legislation. The aim of the review was said to be to create more flexible, responsive and modern workers' compensation and injury management legislation.
WorkCover WA made a number of recommendations for an improved structure for the Act, to enhance the readability and consistency of the legislation and to improve the capacity of the legislation to accommodate changing circumstances.
In particular, in a 139 page report of December 2009 WorkCover recommended a complete redraft and restructure of the Act to introduce contemporary language and drafting conventions. Except in the instances expressly identified for reform, the intention was to preserve the current intent of the legislation.
At par 355 the report noted that at cl 17(1aa) of sch 1 the Act provides that a worker may claim the cost of only the first of any impairment assessments conducted for the purpose of determining eligibility to elect to pursue common law damages.
At par 356 the report noted that the Act does not specifically provide for payment of expenses for impairment assessments for other purposes under the Act ie, permanent impairment, exceptional circumstances payments and specialised retraining.
By recommendation R61 the report recommended cl 17(1aa) of sch 1 (Payment of medical and other expenses) be amended to clarify workers' entitlement for payment of approved medical specialist fees where the completion of an impairment assessment requires the involvement of multiple approved medical specialists.
According to a message from the chief executive officer of WorkCover dated 8 April 2010 at the commencement of the report, the government unconditionally accepted all recommendations with the exception of recommendation 46.
On the face of it, therefore, the government accepted recommendation 61 to amend cl 17(1aa). A number of recommendations were then acted upon through the 2011 amendments to the Act. Clause 17(1aa) was not, however, amended notwithstanding recommendation 61.
It is clear, therefore, that the attention of Parliament was called to the existence of cl 17(1aa) prior to the amendment which gives rise to cl 19(3A).
General principles of statutory interpretation
Like the learned arbitrator I apply the reasoning of the High Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 [69] – [71]. I have also had regard to s 18 of the Interpretations Act 1984 (WA).
I also apply the principle stated by Gaegler J in Commissioner of Police v Eaton (2013) 252 CLR 1 [98] that statutory texts enacted by the same legislature are to be construed so far as possible to operate in harmony and not in conflict. That principle of harmonious construction applies to the construction of provisions within different statutes of the same legislature to create a very strong presumption that the legislature did not intend to contradict itself, but intended that both should operate.
As his Honour also observed, the principle applies also to the construction of multiple provisions within a single statute to the effect that where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. In undertaking that adjustment, such a sense is to be made upon the whole as that no clause, sentence or word shall prove superfluous, void or insignificant, if by any other construction they may all be made useful and pertinent.
Is cl 17 a specific provision which must be read as proviso to the general provision?
Clause 17(1aa) is confined by its express words to expenses arising from a s 93L assessment. Clause 19(3A) deals with any case where a worker travels for his/her degree of impairment to be assessed by an approved medical specialist or panel. Clause 19(3A) includes but is not limited to s 93L assessment. Clause 19(3A) is therefore wider in its potential application than cl 17(1aa).
There is a principle of statutory interpretation that where there is a conflict between two sections of an act and where there is a general provision which, if applied in its entirety, would neutralise a special provision dealing with the same subject matter, the special provision must be read as a proviso to the general provision, and the general provision in so far as it is inconsistent with the special provision, must be deemed not to apply: Goodwin v Phillips [1908] HCA 55; (1908) 7 CLR 1 [14] (O'Connor J).
The principle is encapsulated in the old formula – generalia specialibus non derogant.
On behalf of the respondent Mr Ludlow drew to my attention three examples, drawn from now somewhat old English authorities, of the general yielding to the specific, albeit in those cases it was necessary to resolve a conflict between two separate Acts of Parliament as opposed to resolving a conflict between two sections of the same Act.
This principle was considered in some detail by Dalton J, with whom Philippides JJA agreed, in the recent decision of Amos v Brisbane City Council [2018] QCA 11 and I gratefully adopt her Honour's analysis.
Her Honour stated at [112] that Halsbury's Laws of Australia describes the maxim as expressing the 'primacy' of specific provisions over general ones' and as being based on ordinary English usage and common sense. In Barker v Edger [1898] AC 748 at [754] the rule was stated this way:
When the Legislature has given its attention to a separate subject, and made provision for it, the presumption is that a subsequent general enactment is not intended to interfere with the special provision unless it manifests that intention very clearly.
Her Honour continued at [113]: that statement of the rule was the starting point for discussion in the judgment of Knox J in Bank Officials' Association (SA Branch) v Savings Bank of South Australia (1923) 32 CLR 276; [1923] HCA 25. From the continued discussion in that judgment it is clear that the rule was very much understood as meaning that later, general legislation was not meant to impliedly repeal or derogate from earlier legislation which was specific. Isaacs and Rich JJ were to similar effect, citing Blackpool Corporation v Starr Estate Co (1922) 1 AC 27, 34:
… wherever Parliament in an earlier statute has directed its attention to an individual case for and has made provision for it unambiguously, there arises a presumption that if in a subsequent statute the Legislature lays down a general principle, that general principle is not to be taken as meant to rip up what the Legislature had before provided for individually, unless an intention to do so is specially declared.
In Perpetual Executors & Trustees Association of Australia Ltd v Commissioner of Taxation (Cth) (1954) 88 CLR 434, Dixon J recognised that the principle also applied 'to the interpretation of a single statute containing a special and general provision': [114].
In Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566, Gummow & Hayne JJ noted that while it is a 'large step' to read one statute as abrogated by another, where only one statute is being construed, it is another thing to say that one provision of that statute is 'insusceptible of exercise in certain factual circumstances': [114].
Before I can apply the maxim to my consideration of cl 17(1aa) and cl 19(3A) I must be satisfied that the two statutory provisions under consideration must deal with the same subject matter, and one must be more specific than the other. I am so satisfied.
Applying that principle I am satisfied that the arbitrator was correct in concluding that the two provisions can in fact be read together. Although cl 19(3A) expressly contemplates the payment of a worker's travelling expenses where a worker travels in order to have their degree of impairment assessed by an approved medical specialist, there are a number of reasons for such an assessment. Clause 19(3A) provides for travel, meal and lodging expenses for all attendances for the purposes of common law assessments (s 93L). In the latter scenario the position is governed by cl 17(1aa).
Clause 17(1aa) provides for entitlements in circumstances where a worker seeks to protect or pursue their common law rights under pt IV of the Act and in doing so expressly excludes travel expenses.
Clause 17(1aa) prevails because it is a specific provision relating to s 93L assessments as opposed to a general provision.
Does cl 17(1aa) merely direct one to cl 19(3A) in that it deals with reasonable expenses whereas cl 19(3A) deals expressly with travel expenses
The approach, urged upon me by Mr Briggs having regard to the overall purpose of the Act is that cl 17(1aa) is no more than a signpost, referring the reader of the Act to cl 19(3A) and that each clause deals discretely with one aspect of expenses. In my view, such a finding could only be reached if the exclusionary words under cl 17(1aa) are ignored.
I am not prepared to disregard those plain words. It is a longstanding principle of statutory interpretation that all words in legislation should (where possible) be given meaning and effect: The Commonwealth v Baume [1905] HCA 11; (1905) 2 CLR 405, 414. In my view the exclusionary words do not apply only to expenses payable under cl 17.
I decline to construe the Act so as to conclude that a worker is compensated for medical and other expenses under cl 17(1) whilst, notwithstanding cl 17(1aa), paid the associated travel and other expenses under cl 19,
Does cl 19(3A) render the last part of cl 17(1aa) inapplicable?
I also reject Mr Briggs' alternative position that if cl 17(1aa) prevails over cl 19(3A), cl 19(3A), which was enacted at a later time must be taken to supersede the exclusionary part of cl 17(1aa) which must therefore be disregarded.
If the intention of Parliament was that all travel, meals and lodging expenses would be covered by cl 19, there is no readily understandable reason for the retention of the impugned part cl 17(1aa). I am not satisfied that cl 19(3A) negates or supersedes the last part of cl 17(1aa).
Conclusion
The arbitrator was correct in dismissing the appellant's application. Given my finding that cl 19(3A) does not apply to Mr Briggs' case, the respondent's alternative submission that the claimed entitlements should not be allowed in any event, as set out at pars 52 – 62 of its written submissions does not arise for consideration.
Orders
I grant leave to appeal on the single ground of appeal, but for the reasons outlined above I dismiss that ground and consequently the appeal.
I will hear from the parties as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
MW
ASSOCIATE TO JUDGE TROY1 JUNE 2018
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