Butler v St John of God Health Care Inc - [2008] WASCA 174

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: BUTLER -v- ST JOHN OF GOD HEALTH CARE INC [2008] WASCA 174

CORAM: McLURE JA
BUSS JA
NEWNES AJA

HEARD: 15 MAY 2008

DELIVERED : 22 AUGUST 2008

FILE NO/S: CACV 128 of 2007

BETWEEN: MARK BUTLER
Appellant
AND
ST JOHN OF GOD HEALTH CARE INC
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :MARTINO DCJ
Citation  :BUTLER -v- ST JOHN OF GOD HEALTH CARE INC [2007] WADC 148
File No  :CIV 2520 of 2005

Catchwords:

Contract - Claims by employee for depression and stress - Deed of release - Subsequent action by employee making claims for depression and stress - Summary judgment for employer - Proper construction of deed of release - Whether deed a defence only to specific claims previously made by employee or to all claims of like nature - Meaning of 'in connection with', 'arising out of' and 'in respect of' - Whether deed contrary to Workers' Compensation and Rehabilitation Act 1981 (WA) - Turns on own facts

Legislation:

Workers' Compensation and Rehabilitation Act 1981 (WA), s 92(f), s 92(g)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr B L Nugawela
Respondent: Mr D R Clyne

Solicitors:

Appellant: GV Lawyers
Respondent: Pynt & Partners

Case(s) referred to in judgment(s):

Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99
Bank of Credit and Commerce International SA v Ali [2002] 1 AC 251
Butler v St John of God Health Care Inc [2007] WADC 148
Commissioner for Superannuation v Miller (1985) 8 FCR 153
Dickinson v Motor Vehicle Insurance Trust (1987) 163 CLR 500
Erect Safe Scaffolding (Australia) Pty Ltd v Sutton [2008] NSWCA 114
Grant v John Grant & Sons Pty Ltd (1954) 91 CLR 112
McDowell v Baker (1979) 144 CLR 413
North Eastern Railway Co v Furness Shipbuilding Co Ltd (1934) 50 TLR 257
Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465
Qantas Airways Ltd v Gubbins (1992) 29 NSWLR 26
Re Minister for Resources; Ex parte Cazaly Iron Pty Ltd (2007) 34 WAR 403
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165
Western Metals Zinc NL v Wesfarmers Transport Ltd [2003] WASCA 152

McLURE JA: I have had the advantage of reading in draft form the judgments of Buss JA and Newnes AJA. I agree that the appeal should be dismissed for the reasons they give.
BUSS JA: I agree with Newnes AJA that the appeal should be dismissed.
The leading authority in Australia on the proper approach to the construction of deeds of release is, no doubt, Grant v John Grant & Sons Pty Ltd (1954) 91 CLR 112. In that case, Dixon CJ, Fullagar, Kitto and Taylor JJ said:
equity proceeded upon the principle that a releasee must not use the general words of a release as a means of escaping the fulfilment of obligations falling outside the true purpose of the transaction as ascertained from the nature of the instrument and the surrounding circumstances including the state of knowledge of the respective parties concerning the existence, character and extent of the liability in question and the actual intention of the releasor (129 ‑ 130).
Also see Qantas Airways Ltd v Gubbins (1992) 29 NSWLR 26, 29 (Gleeson CJ and Handley JA), 43 (Kirby P).
The approach in Grant is to be compared to and contrasted with some observations in the decision of the House of Lords in Bank of Credit and Commerce International SA v Ali [2002] 1 AC 251. Lord Nicholls of Birkenhead said:
there is no room today for the application of any special 'rules' of interpretation in the case of general releases. There is no room for any special rules because there is now no occasion for them. A general release is a term in the contract. The meaning to be given to the words used in a contract is the meaning which ought reasonably to be ascribed to those words having due regard to the purpose of the contract and the circumstances in which the contract was made. This general principle is as much applicable to a general release as to any other contractual term [26].
Also see the speeches of Lord Hoffmann [70] ‑ [72] and Lord Clyde [79].
Before this court, counsel for the appellant asserted that 'it doesn't make any difference in this case' (ts 2) whether the deed between the appellant and the respondent is construed by reference to the particular approach to deeds of release enunciated by the High Court in Grant or not.
Grant has not been overruled, disapproved, confined or read down in any subsequent decision of the High Court. It must be applied.

In the present case, the application of the approach in Grant to the deed between the appellant and the respondent leads to the conclusion that the learned primary judge was correct in concluding that the respondent had a good defence to the appellant's claims in respect of the first accident and the third accident, and that there was no reason why summary judgment should not be entered against the appellant on those claims. I agree with Newnes AJA's construction of the relevant provisions of the deed.
There is no merit in the appellant's submission that, by reason of s 92(f) and s 92(g) of the Workers' Compensation and Rehabilitation Act1981 (WA), the deed between the appellant and the respondent was ineffective to bar the appellant from litigating the claims in his writ. At the material time (that is, the date of execution of the deed, namely, 3 October 2003), s 92(f) and s 92(g) of the Act provided:
(f)if a worker’s claim for damages against the employer or the defendant is settled by agreement otherwise than by a judgment, an acceptance of an offer to consent to judgment, or an acceptance of money paid into court -
(i)the employer or the defendant shall file a memorandum of the terms of the settlement with the Directorate within 3 months of the date of its execution by the worker;
(ii)the worker shall not commence or continue a claim for compensation under this Act in respect of the same injury unless the Director disapproves of the settlement within 6 weeks of the agreement for settlement being filed with the Directorate;
(iii)the Director shall not disapprove of the agreement unless he is satisfied the agreement was induced by fraud or misrepresentation or that it would clearly be for the worker’s benefit to disapprove of it;
(iv)the Director if he disapproves of the settlement shall serve notice in writing of his disapproval on each of the parties to the settlement of his decision and of the reasons for his disapproval by pre‑paid post to the address of the party set out in the settlement or the last known address of a party, within 14 days of the making of his decision;
(g)where a claim for compensation is commenced or continued after the Director disapproves of a settlement referred to in paragraph (f), the amount recovered or recoverable under such settlement shall be brought into account in reduction of the worker’s entitlement to compensation;

Section 92 of the Act is concerned with circumstances where a worker brings an action for damages, independently of the Act, against his or her employer or against some other person or against both of them. The section, in essence, precludes the worker from recovering or retaining both compensation under the Act, and damages independently of the Act, in respect of the same injury. Where an action is brought by a worker for damages independently of the Act, the amount paid and payable under the Act is to be deducted from the amount of the judgment. See s 92(b) and s 92(c). If the action proceeds to judgment, the worker cannot commence or continue proceedings for compensation under the Act in respect of the same injury. See s 92(e). Where an action for damages, independently of the Act, is settled otherwise than by way of judgment, whether by agreement or by acceptance of an offer to consent to judgment or by acceptance of money paid into court, the worker is prohibited from commencing or continuing a claim for compensation under the Act in respect of the same injury unless the Director Dispute Resolution disapproves of the settlement within 6 weeks of a memorandum of the terms of the settlement being filed with the Director. See s 92(f). Where a claim for compensation is commenced or continued after the Director disapproves of a settlement pursuant to s 92(f), the amount recovered or recoverable under such settlement must be brought to account in reduction of the worker's entitlement to compensation. See s 92(g). Generally, in relation to s 92, see Western Metals Zinc NL v Wesfarmers Transport Ltd [2003] WASCA 152.
The learned primary judge was correct to find that there was nothing in the Act to prevent a worker and his or her employer making a binding agreement that the worker would not pursue a claim for damages against the employer before a determination of the degree of disability in relation to the relevant injury had been made under the Act. The absence of a determination of the degree of disability in respect of the appellant's alleged injuries did not preclude the deed between the appellant and the respondent from operating effectively as a bar to the appellant bringing the claims in his writ.
The appeal should be dismissed.
NEWNES AJA: This is an appeal against a judgment of Martino DCJ in the District Court in which his Honour granted an application by the respondent (defendant) for summary judgment in respect of two of the three causes of action relied upon by the appellant (plaintiff) in the action: Butler v St John of God Health Care Inc [2007] WADC 148.

His Honour refused the respondent's application in respect of the remaining cause of action, concluding that it was arguable.

The facts

On 10 November 2005, the appellant commenced an action for damages for personal injury against the respondent in the District Court. An amended writ of summons was filed on 3 November 2006. The writ is generally indorsed and no statement of claim has yet been filed by the appellant. The indorsement of claim is as follows:
1.The plaintiff was born on 28 December 1959 and from 1996 to 2003 was a patient care assistant at the defendant's hospital.
2.From 1996 to December 1999 the plaintiff was subject to victimisation and vilification from the employees of the defendant and management of the defendant which resulted in the plaintiff suffering post‑traumatic stress with symptoms of stress and depression causing the plaintiff to be incapacitated for periods from 1 December 1999.
3.The plaintiff alleges that the defendant directly and vicariously was negligent in the manner in which the plaintiff was treated in his place of employment causing the plaintiff to suffer the onset of depression and stress ('the First Accident').
4.The plaintiff further alleges that the defendant was in breach of statutory duties in respect of its employment of the plaintiff pursuant to the Occupational Health and Safety Act.
5.On or about 18 October 2002 the Plaintiff suffered injuries to his back and suffered damage when in the course of his employment whilst cleaning out a room suffered the second injury (the 'Second Accident').
6.From the commencement of employment to on or about November 2002 the plaintiff in the course of his employment was subject to further racial vilification, victimisation and discrimination resulting in the plaintiff suffering further depression ('the Third Accident').
The Third Accident was caused by the negligence and breach of statutory duty of the defendant.
The respondent applied for summary judgment on the ground that it had a good defence on the merits, alternatively that the action was frivolous or vexatious. The respondent based that application on a deed of release (deed) dated 3 October 2003 made between the appellant and the respondent. As the proper construction of the deed was central to the proceedings below, and is central to this appeal, it is necessary to set out the relevant terms of it.
In the deed, the appellant is defined as the 'Employee' and the respondent as the 'Employer'. The relevant terms are:
RECITALS
A.The Employee was employed by the Employer as a Patient Care Assistant on a permanent basis from 6 July 1998 until his resignation on 18 February 2003 (the Employment).
B.On 25 September 2002 the Employee made a complaint to the Human Rights and Equal Opportunity Commission (the Commission) alleging that he had been subject to sex discrimination and racial discrimination in the Employer's hospital facility in Murdoch. On 30 January 2003 the Employee raised a further allegation of victimisation by the Employer which was accepted by the Commission as forming part of the original complaint (the Complaint).
C.The Employee has also alleged that in or about November 2002 and on or about 19 February 2003 he suffered depression (the Disability) as a result of victimisation and discrimination during the Employment, caused by the Employer's negligence (the Compensation Claim).
D.On 30 April 2003 the Commission terminated the Complaint on the basis that there was no reasonable prospect of settlement through conciliation.
E.On 20 May 2003 the Employee filed in the Federal Magistrates Court application W80 of 2003 (the Application) alleging that he was discriminated against by the Employer because he was Aboriginal and male, and that he had been victimised by the Employer for making the Complaint.
F.The Employer denies all liability in relation to the allegations giving rise to the Complaint or the Application, or the Compensation Claim, or any other matters arising out of the Employment.
G.Without admission of liability, the Employer and the Employee have, save for workers' compensation entitlements, agreed to settle the Application and all other matters between them arising from, relating to or in connection with the Complaint, the Application, the Employment and the Compensation Claim, including any entitlement to common law damages arising from, relating to or in connection with the Disability, on the terms contained in this Deed.
H.Workers' compensation entitlements arising out of the Compensation Claim have been settled pursuant to a separate agreement made under sections 24, 67(2) and 76 Workers' Compensation and Rehabilitation Act 1981.
OPERATIVE PROVISIONS
…
2.Payment
2.1In consideration of the release and indemnity set out in clauses 4 and 6 the Employer agrees to pay the Employee $5,618.20 to compensate the Employee for any hurt or humiliation the Employee may have suffered as a result of the allegations giving rise to the Complaint and/or the Application and for any common law liability the Employer may have to the Employee in respect of the Disability and/or the Compensation Claim.
…
3.Withdrawal of the Application
3.1The Employee agrees that, within 7 days of receipt of the Payment, he will:
(a)file a Notice of Discontinuance of the Application (the Notice); and
(b)provide the Employer with a copy of the Notice.
4.Employee Releases the Employer from Claims and Liability
4.1The Employee agrees that this deed fully satisfies:
(a)the rights (however described and however arising) that the Employee, and anyone who claims through the Employee, has or may have against the Employer in connection with the Complaint or the Application or the circumstances giving rise to the allegations forming the basis of the Complaint or the Application, or any matters arising out of the Employment; and
(b)the rights the Employee, and everyone who claims through the Employee, has or may have against the Employer at common law arising, in respect of, relating to, or in connection with the Disability or the Compensation Claim.
4.2The Employee releases the Employer from:
(a)all claims and liability in respect of the Complaint and the Application or the circumstances giving rise to the allegations forming the basis of the Complaint or the Application, or any matters arising out of the Employment; and
(b)all claims and liability at common law and any legal or other costs, charges, fees or expenses incurred in connection with the Disability and/or the Compensation Claim.
4.3This release covers all claims and liability, however described and however arising, save for workers' compensation entitlements as noted in recital H. It covers liability to any person who claims through the Employee and extends to any present or future liability.
5.Bar to Further Proceedings
5.1The Employer may use this document:
(a)including as a bar, in any court or other proceedings brought by the Employee (or anyone who claims through the Employee) and to any action, suit or proceedings commenced now or in the future in connection with the Complaint or the Application or the circumstances giving rise to the allegations forming the basis of the Complaint or the Application, or any matters arising out of the Employment; and
(b)as a bar to any common law claim or demand or action, suit or proceeding relating to, or arising out of, or in connection with the Disability and/or Compensation Claim.
6.Employee Indemnifies the Employer from Claims and Liability
6.1The Employee indemnifies the Employer against:
(a)any claim brought by the Employee, or any person claiming on the Employee's behalf, in connection with the Complaint or the Application or the circumstances giving rise to the allegations forming the basis of the Complaint or the Application, or any matters arising out of the Employment; and
(b)liability (including liability for costs) in respect of any action, demand, notice, claim or proceeding made in any jurisdiction by:
(i)the Employee;
(ii)the Health Insurance Commission;
(iii)any workers' compensation or personal accident/disability insurer;
(iv)Centrelink or the Department of Social Security; and
(v)any nursing home, medical practitioner, physiotherapist, psychologist, chiropractor or other provider of medical services of whatsoever nature,
relating to, or arising out of, or in connection with, the Disability and/or Compensation Claim.
Before the learned primary judge, the respondent contended that the deed provided a complete defence to any claim made by the appellant in connection with his employment with the respondent, other than workers' compensation entitlements. It therefore provided a complete defence to all of the causes of action in the writ. In the alternative, the respondent contended that the deed provided a complete defence to the causes of action in respect of what are described in the writ as the first accident and the third accident.
The appellant argued that the causes of action in the writ did not fall within the terms of the deed, which was concerned solely with the Complaint, the Disability, the Compensation Claim and the Application. The writ, on the other hand, was concerned with, first, a cause of action relating to victimisation and vilification that occurred in the course of the appellant's employment up to when loss was sustained on 1 December 1999; secondly, a cause of action in respect of a back injury on 18 October 2002; and thirdly, a cause of action relating to racial vilification, victimisation and discrimination from the commencement of the appellant's employment up to November 2002.
The appellant also contended that there was a triable issue as to whether, because there had been no degree of disability determination under the then provisions of the Workers' Compensation and Rehabilitation Act 1981 (WA) (the Act), at the relevant time the appellant had no entitlement to damages and therefore the deed could not be effective as a defence to the appellant's claims.

The findings of the primary judge

The learned primary judge found that by the deed the appellant had released the respondent from any liability in respect of the first accident and the third accident. He said:
In my view by the deed the parties intended to compromise Mr Butler's claim that he had suffered discrimination and victimisation during his employment by St John of God Health Care and his claim that the discrimination and vilification had caused him to suffer depression in or about November 2002 and on or about 19 February 2003. As part of the compromise Mr Butler released St John of Good Health Care from all claims and liability in connection with those claims or the circumstances giving rise to them.
The claims made by Mr Butler in this action, which he describes as being the first accident and the third accident in his indorsement of claim, in my view clearly fall within claims from which Mr Butler released St John of God Health Care. They are claims that Mr Butler suffered 'victimisation and vilification' and 'further racial vilification, victimisation and discrimination' in his employment. It is my view that there is no triable issue that the deed provides a complete defence to those claims because they are claims in connection with the claims of discrimination and victimisation which were compromised by the deed [17] ‑ [18].
His Honour further found that there was nothing in the Act to prevent a worker and an employer agreeing that the worker would not pursue a claim for damages before there had been a determination of a degree of disability under the Act. The absence of such a determination did not prevent the deed being a complete defence to the claims to which it related.
The learned primary judge held that there was a triable issue as to whether the respondent had been released from liability in respect of the second cause of action (relating to the alleged back injury) and the application for summary judgment for that claim was refused.

The ground of appeal

There was one ground of appeal, as follows:
The learned judge prematurely and wrongly struck out the indorsement of claim pursuant to Order 16 RSC insofar as that related to the First Accident and the Third Accident, when his Honour should have found that there were triable issues, or likely to be triable issues had the action been allowed to proceed.
Particulars of Triable Issues
(a)The precise terms of the deed and whether they would have precluded all possible causes of action arising from the indorsement.
(b)Whether the deed contained any or any relevant forbearance or covenant not to sue.
(c)The validity or efficacy of the deed in purporting to compromise any common law cause of action in breach of the provisions of the Workers' Compensation and Rehabilitation Act 1981 (as it then existed).
On the hearing of the appeal, the appellant did not pursue his contention that there was a triable issue as to whether the deed contained any relevant forbearance or covenant not to sue. The two questions that remained were first, whether, by the deed, the appellant had released the respondent from any liability in respect of the first and third accidents, and, secondly, whether any such release was in breach of the relevant provisions of the Act.

The appellant's submissions

It was submitted on behalf of the appellant that the releases and indemnities granted by the appellant in the deed were limited to the Complaint, the Disability, the Compensation Claim and the Application, and the specific circumstances giving rise to each of those.
As the material facts relied upon for the appellant's causes of action had not yet been set out in a statement of claim, and as neither the Complaint nor the Application was put in evidence on the application, his Honour could not properly evaluate whether the causes of action contained in the writ fell within the Complaint, the Disability, the Compensation Claim or the Application, or the circumstances giving rise to any of them. On the face of the deed and the writ, the causes of action in the writ were not identical to the claims referred to in the deed.
It was further contended that it was arguable that the effect of s 92(f) and s 92(g) of the Act was that the deed was not effective to bar the appellant from bringing the claims in the writ.

The respondent's submissions

It was submitted on behalf of the respondent that it was the clear and obvious intention of the parties to settle, by way of the deed, any claims the appellant may have in respect of alleged vilification, victimisation or discrimination during the period of his employment resulting in depression or stress related incapacity.
It was further submitted that s 92 of the Act had no application in the circumstances of this case; it was concerned with the avoidance of double recovery of damages and workers' compensation. The learned primary judge had correctly concluded there was nothing in the Act to prevent the compromise of the appellant's rights to claim damages at common law as contained in the deed.

The disposition of the appeal

It was common ground that the question of the proper construction of the deed fell to be determined without resort to any extrinsic material, but by reference to the document alone.
The appellant's counsel submitted that in this case nothing turned on whether the deed was construed by reference to the principles of construction of a deed of release discussed by the High Court in Grant v John Grant & Sons Pty Ltd (1954) 91 CLR 112 or to the ordinary principles of construction of a contract, to the extent the former might be thought to differ from the latter.
In Grant v John Grant, Dixon CJ, Fullagar, Kitto and Taylor JJ accepted (123 ‑ 124) that a release expressed in general words will usually be read down by reference to what was in the contemplation of the parties at the time of the execution of the release.
Their Honours went on to say:
From the authorities which have already been cited it will be seen that equity proceeded upon the principle that a releasee must not use the general words of a release as a means of escaping the fulfilment of obligations falling outside the true purpose of the transaction as ascertained from the nature of the instrument and the surrounding circumstances including the state of knowledge of the respective parties concerning the existence, character and extent of the liability in question and the actual intention of the releasor (129 ‑ 130).
I note in passing that in Bank of Credit and Commerce International SA v Ali [2002] 1 AC 251 [10], [17], Lord Bingham of Cornhill, having reviewed a number of the earlier cases including Grant v John Grant, suggested that despite the language used in some of the cases, they provide, not a rule of law, but a principle of construction that, in the absence of clear language, a court should be slow to infer that a party intended to surrender rights and claims of which he was unaware and could not have been aware. But Lord Bingham referred with approval to authority to the effect that where such an intention is clearly expressed, it is no part of the court's function to frustrate the intentions of the parties. In the same case, Lord Nicholls of Birkenhead concluded [26] that there are no special rules of interpretation in the case of general releases as there was now no occasion for them.
The general principles of construction to be applied in the interpretation of a written contract are not in doubt. The court is required to discover the intention of the parties from the words of the instrument. The whole of the instrument has to be considered. If the words are unambiguous the court must give effect to them. If the language is open to two constructions, the construction to be preferred is that which will avoid consequences which appear to be capricious, unreasonable, inconvenient or unjust: Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99, 109.
In Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165, Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ affirmed that the rights and liabilities of the parties to a contract are to be determined objectively. Their Honours said:
It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean [40].
However, for present purposes it is unnecessary to consider whether (or to what extent) the principles discussed in Grant v John Grant differ from the ordinary principles of construction of a written contract as the latter principles have more recently been explained by the High Court. In my view, nothing turns on that in this instance.
It is immediately obvious that in this case the deed is framed in very wide terms. The releases and discharges are expressed to be 'in connection with', 'arising out of' or 'in respect of' allegations of vilification, victimisation and discrimination previously made by the appellant and the circumstances on which those allegations were based. While their meaning must, of course, depend upon their particular context, in their ordinary usage each of the expressions 'in connection with', 'arising out of', and 'in respect of' is of wide connotation.
Thus, while the words 'in connection with' connote a relationship between one thing and another, they do not necessarily connote any causal relationship between the two things: see North Eastern Railway Co v Furness Shipbuilding Co Ltd (1934) 50 TLR 257; Commissioner for Superannuation v Miller (1985) 8 FCR 153, 154, 160, 163; Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465, 479, 480. And the words 'in respect of' have the widest possible meaning of any expression intended to convey some connection or relation between the two subject matters to which the words refer: McDowell v Baker (1979) 144 CLR 413, 419; Re Minister for Resources; Ex parte Cazaly Iron Pty Ltd (2007) 34 WAR 403 [12].
While there is no easy test for the nature or extent of the causal or consequential relationship involved in the words 'arising out of', the relationship is less than that required by words such as 'caused by' or 'as a result of': beyond that it is a question of judgment on the particular facts: Dickinson v Motor Vehicle Insurance Trust (1987) 163 CLR 500, 505; Erect Safe Scaffolding (Australia) Pty Ltd v Sutton [2008] NSWCA 114 [11].
The deed was made some months after the appellant had ceased to be employed by the respondent. It is evident from the deed that it was made in the context of a number of allegations having been made by the appellant to the effect that, while employed by the respondent, he had been subjected to vilification, victimisation and discrimination for which the respondent was liable and that he had suffered stress and depression as a consequence of that vilification, victimisation and discrimination.
Recital G of the deed states that the appellant and the respondent have 'agreed to settle the Application and all other matters between them arising from, relating to or in connection with the Complaint, the Application, the Employment and the Compensation Claim, including any entitlement to common law damages arising from, relating to or in connection with the Disability, on the terms contained in this Deed'.
The operative provisions of the deed reflect that agreement, although the language used in those provisions varies to some degree. There is no apparent reason for those differences and for the purposes of this case I do not think anything turns on them.
The effect of cl 4.1 is that the appellant agrees that the deed fully satisfies any rights he has or may have against the respondent:
•'in connection with' his complaints of sex and racial discrimination and victimisation made to the Human Rights and Equal Opportunity Commission (HREOC) on 25 September 2002 and 30 January 2003 or the circumstances giving rise to the allegations which formed the basis of those complaints;
•'in connection with' his application to the Federal Magistrates Court made on 20 May 2003 alleging discrimination and victimisation;
•at common law 'arising, in respect of, or in connection with' the alleged depression he suffered on or about November 2002 and 19 February 2003, allegedly as a result of victimisation and discrimination caused by the respondent's negligence; and
•'in connection with' any matters arising out of his employment by the respondent from 6 July 1998 to 18 February 2003.
The satisfaction of the appellant's rights against the respondent is then buttressed by cl 4.2 which expressly provides for the release of the respondent from, first, any claim or liability 'in connection with' the appellant's complaints to the HREOC and application to the Federal Magistrates Court or the circumstances giving rise to the allegations forming the basis of either of them, or any matters arising out of the appellant's employment by the respondent; and secondly, any claim or liability at common law 'in connection with' the appellant's alleged depression in or about November 2002 and 19 February 2003. (The claims in the writ are, of course, claims at common law.)
The scope of the intended release of the respondent is reflected in cl 5.1 and cl 6.1. The effect of cl 5.1 is to acknowledge that the respondent may use the deed as a bar to any existing or future action or proceeding brought by the appellant 'in connection with the Complaint or the Application or the circumstances giving rise to the allegations forming the basis of the Complaint or the Application, or any matters arising out of the Employment', or to any common law claim 'relating to, arising out of, or in connection with the Disability and/or Compensation Claim'. By cl 6.1, the appellant agrees, in substance, to indemnify the respondent against any of the claims referred to in cl 5.1 brought by the appellant or by anyone claiming on his behalf.
Turning then to the writ, the 'first accident' referred to in the writ relates to alleged victimisation and vilification from 1996 to December 1999 which is said to have caused the appellant to be incapacitated by depression and stress for periods from 1 December 1999. The 'third accident' relates to alleged further racial vilification, victimisation and discrimination from the commencement of his employment with the respondent until on or about November 2002, which is said to have resulted in the appellant suffering further depression.
In my view, it is quite clear from the terms of the deed that it was the intention of the parties that by the deed the respondent was to be discharged and released both from the specific claims referred to in it and from any other existing and future claims and proceedings at common law based on allegations that, during the course of his employment, the appellant had been subject to vilification, victimisation or discrimination for which the respondent was liable. The broad language of the deed is entirely inconsistent with an intention that the deed was to operate in the limited way contended for by the appellant; it was plainly intended by the parties that the deed was to put an end to claims of the nature of the 'first accident' and the 'third accident'. That intention is given further, specific emphasis by the provision in cl 4.1 that the deed fully discharges the rights the appellant has or may have against the respondent 'in connection with … any matters arising out of [his employment by the respondent]', and the provision in cl 4.2(a) that the appellant releases the respondent in respect of 'any matters arising out of [his employment by the respondent]'. Those provisions are consistent with the statement in recital G that the parties have 'agreed to settle … all other matters between them arising from, relating to or in connection with … the Employment'.
In the course of argument, counsel for the appellant submitted that the references to a release of all matters arising out of the respondent's employment were simply a 'draftsman's flourish'. I do not accept that. They are a reflection of the fact that the deed was intended to cover all present or future liability in respect of any claims of the nature the appellant now seeks to advance.
In my view, the learned primary judge was correct in finding that the causes of action referred to in the writ as the first accident and the third accident fell within the terms of the deed.
I consider there is no substance in the appellant's further contention that the deed was in breach of the then provisions of the Act. Section 92(f) and s 92(g) of the Act are concerned with precluding a worker from recovering both compensation under the Act and damages independently of the Act in respect of the same injury. They have no application to the present circumstances. The learned primary judge correctly found that there was nothing in the Act to prevent a worker and an employer agreeing that the worker would not pursue a claim for damages before there had been a determination of a degree of disability under the Act. The absence of such a determination did not prevent the deed being a complete defence to the claims to which it related.

Conclusion

The learned primary judge was correct in concluding that the respondent had a good defence to the appellant's claims in respect of the first accident and the third accident. I would dismiss the appeal.