City of Albany v The State of Western Australia - [2019] WASC 71

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   CITY OF ALBANY -v- THE STATE OF WESTERN AUSTRALIA [2019] WASC 71
CORAM:   CURTHOYS J
HEARD:   22 NOVEMBER 2018
DELIVERED          :   8 MARCH 2019
FILE NO/S:   CIV 1629 of 2018
BETWEEN:   CITY OF ALBANY
Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
Defendant

Catchwords:

Statutory interpretation - Responsibility for payment - Death - Injury

Legislation:

Bush Fire Regulations 1954 (WA)
Bush Fires Act 1954 (WA)
Workers' Compensation and Injury Management Act 1981 (WA)

Result:

Declaration in favour of the State of Western Australia

Representation:

Counsel:

Plaintiff	:	Dr J T Schoombee
Defendant	:	Mr D E Leigh

Solicitors:

Plaintiff	:	Moray & Agnew Lawyers
Defendant	:	State Solicitor's Office

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

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27
Eclipse Resources Pty Ltd v Minister for Environment [No 2] [2017] WASCA 90
Mohammadi v Bethune [2018] WASCA 98
Nilant v Macchia [2000] FCA 1528; (2000) 104 FCR 238

CURTHOYS J:

Introduction and background

John Fenwick, a volunteer fire fighter, suffered a stroke on 4 January 2016. He suffered the stroke while engaged under the Bush Fires Act 1954 (WA) (the Bush Fires Act) in normal brigade activities for the City of Albany's bush fire brigade at Norman's Beach, Manypeaks. He died as a result of the stroke on 11 January 2016.

The originating summons

At the hearing of the matter the originating summons was amended to read as follows:
1.Was the Plaintiff obligated to take out insurance to cover payment of death benefits such as the notional residual entitlement (NRE), pursuant to Schedule 1 of the Workers Compensation and Injury Management Act 1981 (WA) (the Schedule 1 death benefits), so that the 'additional amount' payable by Defendant pursuant to s 37(5) was the 'prescribed amount' multiplied by 2.36, less the Schedule 1 death benefits so payable?
Or
2.Was the Defendant required to pay out the whole of the 'prescribed amount' multiplied by 2.36, in respect of 'death' as a 'specified injury' under s 37(6), without any obligation on the part of the Plaintiff to take out insurance to cover Schedule 1 death benefits?

The history of the Bush Fires Act prior to 1992

The Bush Fires Act as enacted in 1954 obliged local authorities to take out insurance covering voluntary bush fire brigades. However, the content of the policy was left largely unregulated (s 37 as it then was).
Section 37 was repealed and re‑enacted by the Bush Fires Act Amendment Act 1969 (WA) (Act 101 of 1969). This, for the first time, coupled the compensation payable, to be covered by insurance, to the compensation to which the fire fighter would be entitled if he or she were a worker entitled to compensation under the then Workers' Compensation Act 1912 (WA). The State Government did not have a responsibility for compensation under the 1969 Act.
Section 37 of the Bush Fires Act as amended by 101 of 1969 relevantly provided:
(1)In this section -
'bush fire' includes a fire in a building;
'firefighter' means a bush fire control officer, an officer or a member of a bush fire brigade, or a person voluntarily assisting any of them in controlling or extinguishing a bush fire;
'injury' means personal injury by accident that is not compensable under the Workers' Compensation Act, 1912 and includes incapacity, disability, and death that results from the injury;
'loss of damage' does not include loss or damage that is caused by or results from theft, reasonable wear or tear, mechanical or electrical breakdown, failure or breakage.
(2)A local authority that maintains a bush fire brigade as part of its organisation for the prevention, control and extinguishment of bush fires shall obtain and keep current -
(a)a policy of insurance that insures firefighters for compensation, payable in accordance with subsections (4) and (5) of this section, for injury caused to them while they are engaged, pursuant to this Act, in controlling or extinguishing a bush fire, or, subject to subsection (3) of this section, while they are travelling to or from the place where they are so engaged; and
(b)…
(3)Paragraph (a) of subsection (2) of this section does not apply in respect of an injury caused to a firefighter after he ceases to be engaged in controlling or extinguishing a bush fire unless the injury occurs while he is travelling between the place where he was so engaged and his place of employment, business or residence without any deviation or interruption unconnected with the controlling or extinguishing of the bush fire.
(4)The compensation that is payable and the purposes for which it is payable under a policy of insurance referred to in paragraph (a) of subsection (2) of this section shall be the amounts and purposes that would apply if a firefighter were a worker and suffered a compensable injury under the Workers' Compensation Act, 1912 and where a reference to average weekly earnings is necessary for calculating those amounts, the firefighter is deemed to have been, at the date of the injury, average weekly earnings equal to the basic wage within the meaning of the term 'basic wage' in that Act.
(5)The amounts referred to in subsection (4) of this section shall be payable to the person or persons who would be entitled to receive them if a firefighter were a worker and suffered a compensable injury under the Workers' Compensation Act, 1912.
(6)…
(7)A policy of insurance referred to in paragraph (a) or paragraph (b) of subsection (2) of this section shall provide reasonable conditions for the procedure of establishing claims and arbitrating differences arising out of the policy.

Section 37 of the Bush Fires Act as at January 2016

By the Bush Fires Amendment Act 1992 (No 10 of 1992) s 37 was repealed and substituted so that at the relevant period, 4 ‑ 11 January 2016, it provided:
Local government to insure certain persons
(1)A local government that maintains a bush fire brigade shall obtain and keep current -
(a)a policy of insurance that insures volunteer fire fighters for compensation, payable in accordance with subsection (2) for injury caused to them while they are engaged under this Act in normal brigade activities; and
(b)…
(2)For the purposes of a policy of insurance referred to in subsection (1)(a), the compensation that is payable for an injury and the purposes for which it is payable are the amounts and purposes that would apply if a volunteer fire fighter were a worker and suffered that injury under the Workers' Compensation and Injury Management Act 1981, and where a reference to weekly earnings is necessary for calculating those amounts, the volunteer fire fighter is deemed to have earned -
…
(b)if the volunteer fire fighter is employed other than self‑employed - either the weekly earnings calculated in accordance with the Workers' Compensation and Injury Management Act 1981, or the weekly earnings of an officer of the CALM Act Department at Level 2, Year 5, whichever is the greater.
(3)The provisions contained in clauses 8, 10, 11, 16, 17, 18, 18A and 19 of Schedule 1 to the Workers' Compensation and Injury Management Act 1981 apply, with any necessary adaptations, to a policy of insurance under subsection (1)(a) as if they were set out in the policy.
(4)The limitation in section 56 of the Workers' Compensation and Injury Management Act 1981 does not apply to a policy of insurance under subsection (1)(a) if the volunteer fire fighter insured ‑
(a)is a self‑employed person; and
(b)produces sufficient evidence of his or her income, earned prior to the injury.
(5)A volunteer fire fighter who has suffered a specified injury while engaged in normal brigade activities is entitled to payment of an amount in addition to the amount referred to in subsection (2), so that the total amount received by or in respect of that volunteer fire fighter in relation to that injury is the prescribed amount multiplied by 2.36.
(6)In subsection (5) ‑
prescribed amount means the prescribed amount as defined in section 5(1) of the Workers' Compensation and Injury Management Act 1981 determined as at the date on which the injury was caused;
specified injury means -
(a)death;
…
(7)Any additional amount payable under subsection (5) shall be paid out of moneys appropriated by Parliament for that purpose.
(8)The amount referred to in subsection (2) and the additional amount referred to in subsection (5) are payable to the person or persons who would be entitled to receive them if a volunteer fire fighter were a worker and suffered a compensable injury under the Workers' Compensation and Injury Management Act 1981 and, in addition to those persons, shall extend -
(a)to a spouse irrespective of dependency upon the volunteer fire fighter; or
(aa)to a person who was living in a de facto relationship with the volunteer fire fighter immediately before the death of the fire fighter and lived on that basis with the fire fighter for at least 2 years before the death of the fire fighter irrespective of dependency upon the fire fighter; or
(b)to a child of the volunteer fire fighter if the child is dependent upon the volunteer fire fighter.
(8a)If the amount referred to in subsection (2) and the additional amount referred to in subsection (5) are payable to more than one person then those amounts are to be apportioned between those persons in accordance with the regulations.
(9)…

The Bush Fire Regulations 1974 as at January 2016

Clause 40 of the Bush Fire Regulations 1954 (WA) (amended in Gazette 31 December 2009 pages 7140 ‑ 7141) as at 4 ‑ 11 January 2016 provided:
40.Appointment of amounts (Act s 37(8a))
(1)In this regulation -
volunteer fire fighter has the same meaning as in section 35A of the Act.
(2)The amounts referred to in section 37(8a) of the Act are to be apportioned between the persons entitled to those amounts as follows -
(a)if, immediately before the death of the volunteer fire fighter, each of those persons were dependant on the fire fighter, the amounts are to be appointed in accordance with Schedule 1 of the Workers' Compensation Injury Management Act 1981, or
(b)if, immediately before the death of the volunteer fire fighter, none of those persons were dependant on the volunteer fire fighter, the amounts are to be appointed in equal shares or if there is only one such person, that person is to receive all of the amounts; or
(c)if, immediately before the death of the volunteer fire fighter, at least one of those person was dependant on the volunteer fire fighter and at least one of those persons was not, then -
(i)a person who was not so dependant is entitled to 10% of the amounts and if there is more than one such person, those persons are entitled to 10% of the amounts appointed between them in equal shares; and
(ii)the person, or persons, who were so dependant are entitled to the rest of the amounts appointed between them, if there is more than one person, in accordance with Schedule 1 to the Workers' Compensation and Injury Management Act 1981.

The Workers' Compensation and Injury Management Act 1981 and schedule 1

Under the Workers' Compensation and Injury Management Act 1981 (WA) (WCIMA) at the relevant time the compensation payable to a worker arose under s 18 of WCIMA.
Section 18 of WCIMA provided:
If an injury of a worker occurs, the employer shall, subject to this Act, be liable to pay compensation in accordance with Schedule 1.
Before turning to schedule 1 it is useful to set out two definitional terms from WCIMA, 'notional residual entitlement' and NRE' which appear in schedule 1.
Section 5 of WCIMA provided that notional residual entitlement in relation to a deceased worker means a sum equal to:
(a)…
(b)the NRE amount as at the date of the worker's death less the amount of any weekly payments made, the amount of any lump sum paid in redemption of weekly payments, and for amount of any sum paid under schedule 2, for the injury suffered by the worker or impairment resulting from the injury …
Section 5 of WCIMA provides a formula for calculating the NRE amount based on an index. There is no dispute between the parties as to the calculation of the NRE amount (see below).
Schedule 1 is thus of pivotal importance in determining the amount of compensation payable. The clauses in schedule 1 are accurately summarised by the State in its submissions as follows:
(a)cl 1 ‑ cl 5 provide for various payments to be made in the event that an injured worker dies as a result of their injury (save for cl 1C, which provides a mechanism for determining entitlements under cl 1B);
(b)cl 7 provides for payments equivalent to weekly earnings to be made while the injured worker is wholly or partially incapacitated;
(c)cl 8 extends the circumstances in which payments for weekly earnings (as provided for by cl 7) will be made to include those in which a worker is capable of working but cannot obtain work as a result of their injury;
(d)cl 9 extends the circumstances under which medical or travel expenses will be reimbursed (as provided for by cl 17 ‑ cl 19) to include those in which injuries are so minor as to not result in any incapacity for work but where the worker is still nonetheless obliged to obtain advice or treatment;
(e)cl 10, similarly to cl 8, extends the circumstances in which payments for weekly earnings (as provided for by cl 7) will be made to include those where the worker - although not incapacitated - cannot work because they are obliged to attend medical appointments, or have not yet received any artificial aid provided for by cl 17 and which they require to work;
(f)cl 11 provides various formulae by which the amount to be paid in respect of weekly earnings (as provided for by cl 7) can be calculated;
(g)cl 12 ‑ cl 16 all operate so as to modify a worker's weekly earnings (as calculated in accordance with cl 11) in particular circumstances;
(h)cl 17 provides that, where a worker is eligible for payments for weekly earnings (as provided for by cl 7), payments up to a maximum amount are to be made in respect of various expenses, including reasonable medical expenses, vocational rehabilitation and funeral expenses, and the repair or provision of various artificial aids;
(i)cl 18 ‑ cl 18D allow for the maximum amount in respect of payments made under cl 17 to be raised in certain circumstances; and
(j)cl 19, finally, provides for payments to be made in respect of expenses incurred in travelling to and from a worker's residence to a place where they obtain treatment or other services of the kind contemplated by cl 17.

Analysis and application of the relevant statutory provisions

In Eclipse Resources Pty Ltd v Minister for Environment [No 2] [2017] WASCA 90 the Western Australian Court of Appeal summarised the settled principles of interpretation drawn from the leading High Court case of Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 [47], [51] in the following terms:
The 'settled principles' to which their Honours referred in that passage appear to be those stated in particular as follows:
'This court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.' [121]
The Court of Appeal has recently restated those principles in Mohammadi v Bethune [2018] WASCA 98:
Statutory construction requires attention to the text, context and purpose of the Act. While the task of construction begins and ends with the statutory text, throughout the process the text is construed in its context…
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute.
The objective discernment of the statutory purpose is integral to contextual construction. The statutory purpose may be discerned from an express statement of purpose in the statute, inference from its text and structure and, where appropriate, reference to extrinsic materials. The purpose must be discerned from what the legislation says, as distinct from any assumptions about the desired or desirable reach or operation of relevant provisions [31] ‑ [33].

The purpose of the Bush Fires Act

The Bush Fires Act provides for the control and extinguishment of bush fires. Section 37 of the Bush Fires Act is directed to compensation for fire fighters injured in the course of fighting bush fires and the City and the local government's respective share of the total amount payable to a fire fighter or his or her beneficiaries.
The fact that s 37 of the Bush Fires Act is directed to compensation for fire fighters in the course of fighting bush fires provides limited guidance in resolving the issue that arises in this matter.
The most that can be said, as submitted by the State, is that the responsibility for expending money in connection with the control and extinguishment of bush fires (s 36) and the management of bush firefighting through a Bush Fire Control Officer rests with the local authority (s 38 ‑ s 39).
One can infer from these sections that it is the local government which is primarily responsible for the safety of bush fire fighters and it should be primarily liable for any compensation payable to fire fighters, or their beneficiaries.
However, it should be noted that under s 38A of the Bush Fires Act, at the request of a local government the FES Commissioner (a State officer) may designate a Bush Fire Controller employed by the Department. In these circumstances, control would rest with the State.
How liability for compensation should be divided is primarily answered by reference to the text of s 37 of the Bush Fires Act.

Matters not in issue

At the relevant time the City held a policy of insurance pursuant to s 37(1)(a) of the Bush Fires Act.
An insurance contract between the City and its insurer (LGIS and Zurich) provided that the City's insurer will indemnify the City in respect of any benefits to which Mr Fenwick was legally entitled under the Act, and for which the City is liable.
The stroke suffered by Mr Fenwick was an injury. Death resulted from that injury.
At the time of his death Mr Fenwick was an employed person.
At the time of his death the NRE was $298,810.00 under schedule 1 of WCIMA.
Mr Fenwick's widow is entitled, in accordance with s 37(5) of the Bush Fires Act, to $514,409.20, being 2.36 times the 'prescribed amount' (as at 4 January 2016) as defined in s 5 of WCIMA.
The City's insurer and the State are each liable to pay a portion of that total amount, and the portion to be paid by the State is the difference between the prescribed amount and the amount of compensation the City's insurer is obliged to pay.

The issue

The key issue in this matter is the proportion of the prescribed amount the City's insurer is obliged to pay as compared to the amount the State is obliged to pay.
The parties differ as to whether the City's insurer is liable to make payments in accordance with all of the clauses of schedule 1 of WCIMA or only in accordance with the clauses listed in s 37(3) of the Bush Fires Act. The City contends it is the latter and that its insurer is not liable for payments arising from the death of Mr Fenwick. The State says that the City's insurer's liability is the former so that it is responsible for compensation payments arising from of the death of Mr Fenwick.

The City argues that its insurer is liable to pay $40,854.33 and that the State is liable to pay $473,554.87.
The City's calculation is:

1

Weekly payments (for lost wages 4 to 11/1/2016)

$1,205.56

2

Royal Flying Doctor Service

$7,238.22

3

St John Ambulance

$1,832.00

4

Health Corporate network:
(a) Sir Charles Gairdner Hospital
(b) Albany Hospital

$21,014.00
$245.00

5

Funeral Expenses

$9,319.55

TOTAL

$40,854.33

The State argues that the City's insurer is liable to pay $339,664.37 and the State's liability is $174,744.87.
If the State is correct, the City's insurer would be liable for the following:
19.1$40,854.33 (primary payments)
19.2$298,810.00 (the NRE amount)
Total: $339,664.33
The State would then only be liable for the balance of $174,744.87.
If the City's calculation is correct then it is only liable to pay about 8% of the total amount payable to Ms Fenwick.

Summary of City's submissions

The City submitted that four points lead to a conclusion that the City's insurer is not liable to pay compensation as a result of the death of Mr Fenwick.
Those four points are:
(a)insurance under s 37(2) of the Bush Fires Act is required for injury only, and injury does not include death;
(b)'death' as provided for in s 37(6) of the Bush Fires Act is a 'specified injury';
(c)the legislature has over a long time purposefully incorporated only certain clauses of schedule 1 of WCIMA into the required insurance policies, and has chosen specifically not to do so for cl 1 to cl 5, which deal with death benefits; and
(d)'specified injury' compensation has its own regime under the Bush Fires Act and that obviates the necessity to also incorporate parallel non‑incorporated substantive provisions of cl 1 of schedule 1 of WCIMA.
The City further submits that death benefits cannot be read into the compensation regime for fire fighters in those circumstances, and to do so would create a 'quagmire'.
As a result of the points referred to above the City submits that where a fire fighter suffers an injury (not resulting in death) he is entitled to benefits under the Bush Fires Act which the City is liable to pay. However, where a fire fighter dies no compensation is payable by the City for the death - because death is not an injury.

The City's first point: injury does not include death

The City's principal argument is that death is not an injury. It submits that the wording of s 37(1)(a) of the Bush Fires Act requires the City to take out a policy under s 37(2) for 'the compensation that is payable for an injury and the purposes for which it is payable are the amounts and purposes that would if the volunteer firefighter were a worker and suffered that injury under WCIMA'. The City submits that where the word 'injury' is used once in s 37(1) and twice in s 37(2) that does not include death as a matter of simple commonplace meaning and also s 5 of WCIMA.
The State submits that the mechanism for calculating the quantum of compensation set out in s 37(2) provides that the compensation payable is 'the amounts and purposes that would apply if a volunteer firefighter were a worker and suffered that injury under the [WCIMA]'. Accordingly, the State submits that s 37(2) asks the question: what would a worker receive under WCIMA if they suffered the same harm as suffered by the fire fighter?
The State submits that the effect of s 18 is essentially to define compensation (a word not otherwise defined in WCIMA) as being 'all applicable payments set out in Schedule 1'.
The State submits that the City's submission ignores the plain meaning of the words of s 37(1), which specify that compensation is payable 'in accordance with subsection (2)', and not 'in accordance with subsection (3)'.
The State's submission as to the text of s 37(1)(2) is correct.
The court does not accept that the proposition put forward by the City that the proper question is: to ask whether death is an injury. The court finds that the correct question is: what events give rise to a right to compensation?
The events which give rise to a right to compensation are to be found in schedule 1 of WCIMA. Death is included in those events which give rise to a right to compensation.
The City's submission overlooks the precise words giving rise to a right to compensation. It is important to note that a right to compensation under schedule 1 arises where an injury results in the death of a worker. Even if death is not an injury a right to compensation arises. Death as a consequence of injury gives a right to compensation. Therefore, it is beside the point to say that injury does not include death. The critical issue is what event gives rise to a right to compensation. The answer is death is one of the events that gives a right to compensation.
Schedule 1 of WCIMA makes it clear that compensation is payable for death resulting from injury. Injury is referred to in s 37(1) and (2). Mr Fenwick suffered an injury.
As the State correctly submitted, because Mr Fenwick suffered an injury all the consequences which flow from that injury are picked up by s 37(1) and s 37(2) of the Bush Fires Act, and all of those payments, which would ordinarily be payable, are accordingly made payable under the Bush Fires Act through s 37(2).
The obligation imposed on the City by reason of s 37(2) of the Bush Fires Act is to obtain and keep current a policy of insurance that provides that the compensation that is payable for an injury and the purposes for which it is payable are the amounts and purposes that would apply if a volunteer fire fighter were a worker and suffered that injury under WCIMA. That compensation includes death arising from injury.
The court accepts the State's submission that death from injury gives rise to a right to compensation and, accordingly, does not accept that a policy which does not provide compensation in the event of death meets a local government's obligations under s 37.

The City's second point: death is a 'specified injury'

The City further submits that under the Bush Fires Act, 'injury' is not separately defined whereas 'specified injury' is so defined in s 37(6) of the Bush Fires Act. There, 'specified injury' is defined by reference to a number of categories of serious injuries and diseases. The first item so specified is 'death'. There is no category of 'specified injury' under WCIMA.
This submission misses the point. Section 37(5) of the Bush Fires Act provides that a fire fighter who suffers a specified injury while engaged in normal brigade activities is entitled to payment of an amount in addition to the amount referred to in s 37(2). The amount referred to in s 37(5) of the Bush Fires Act is payment of an additional amount to the amount referred to in s 37(2) and is defined by reference to a 'specified injury'. Given the expression used in s 37(5) is 'specified injury' it needs to be defined. It is so defined in s 37(6). This definition includes 'death', 'total loss of both eyes' etc. The fact that death is a 'specified injury' does not lead to the conclusion that 'injury' does not give a right to compensation for injury resulting in death under s 37(2).
The fact that there is no such category (or equivalent category) as 'specific injury' under WCIMA is because s 37(5) is performing a different function to s 37(2) in the Bush Fires Act. In s 37(5) it is identifying the circumstances in which the additional amount is payable by reference to a 'specified injury'.

The City's third point: s 37(3) of the Bush Fires Act only incorporates certain clauses from schedule 1

A significant point of difference between the City and the State relates to the effect of s 37(3) of the Bush Fires Act.
Section 37(3) only refers to certain provisions of schedule 1 of WCIMA - 8, 10, 11, 16, 17, 18, 18A and 19.
The City submits that s 37(3) provides that specific clauses in schedule 1 of WCIMA apply 'with necessary adaptations' to a policy of insurance under s 37(1)(a) 'as if they were set out in the policy'. The City submits that it does not so incorporate all clauses of schedule 1 and thus does not incorporate, relevantly, cl 1 to cl 7 of schedule 1. The City submits that the State can only succeed if at least cl 1, 1A, 1B and 1C are somehow incorporated by implication into the relevant policy or found otherwise to apply to the compensatory regime under the Bush Fires Act. It argues there is no justification for any such implication.
The City relies on the wording of s 37 of the Bush Fires Act, and notably s 37(3), so as to limit the proportion that it is obliged to pay.
Subsection 37(3) expressly provides that the provisions contained in cl 8, cl 10, cl 11, cl 16, cl 17, cl 18, cl 18A and cl 19 of schedule 1 of WCIMA 'apply, with necessary adaptations, to a policy insurance under subsection (1)(a) as if they were set out in the policy'. The City submits that, importantly, no such incorporation exists in respect of other clauses of schedule 1, including cl 1 ‑ cl 7. The City says that, in the present matter, what is incorporated and what is not incorporated is highly significant. Clause 1 of schedule 1 deals with compensation payments to surviving spouses. The City submits that cl 1 has not been incorporated by the Bush Fires Act.
The City submits that the State takes the position that the insurer of the City should be liable for further payments under the Bush Fires Act, read with WCIMA, before the applicability of any additional payments by the State under s 37(5) can arise. The City submits that, in the present matter, this must entail relying specifically on cl 1 of schedule 1 of WCIMA - a clause not incorporated into insurance policies under s 37(3). Clause 1 deals with payment to the surviving spouse under WCIMA. Clause 1 provides for a 'notional residual entitlement' (NRE) under WCIMA where the death of a worker results, so in fact a top‑up figure in some senses similar to the 'additional payment' referred to in s 37(5) of the Bush Fires Act. It is part of the City's case that as a matter of statutory construction, both cannot apply in respect to a surviving spouse like Mrs Fenwick.
The court does not accept that the notional residual entitlement is a 'top up' figure. The notional residual entitlement simply forms part of the calculation of the amount payable for compensation as a result of the death of a fire fighter.
A problem with the City's submission in relying on the absence of a specific reference to cl 1 ‑ 5 in s 37(5) of the Bush Fires Act is that the sub-section similarly does not incorporate cl 7 of schedule 1 ‑ weekly payments for incapacity into an insurance policy.
The City then submits that s 37(2) further deals with compensation for lost weekly earnings and sets out a relevant regime for the Bush Fires Act. See s 37(2)(a) and (b). The City submits that these paragraphs contain only one specific reference to calculation for loss of such earnings under WCIMA, that is in s 37(2)(b).
The City submits that because s 37(2) refers to 'weekly earnings' cl 7 of schedule 1 does not contribute anything.
The State submits that the City's construction would mean that volunteer fire fighters who suffer an injury which renders them partially or wholly incapacitated would not be eligible for weekly payments while so incapacitated. It is cl 7 which provides for such payments. Clause 7 is not included in the list of clauses set out in s 37(3) and thus, on the City's argument, would not apply to s 37(1) contracts. The State submits that the City has in fact made a payment in respect of weekly earnings and that the City thereby recognises its liability to make payments for incapacity. It argues that this amounts to a concession by the City that such amounts are payable despite the reference to cl 7 in s 37(3).
However, in order to determine whether cl 7 does 'contribute anything' one has to have regard to both the text of s 37(2) and the text of cl 7 of schedule 1. The relevant text of s 37(2) is 'where a reference to weekly earnings is necessary for calculating those amounts, the volunteer fire fighter is deemed to have earned …'.
Clause 7 of schedule 1 provides:
Total or partial incapacity
(1)Subject to section 56 and subclause (3) when total incapacity for work results from the injury a weekly payment during the incapacity equal to the weekly earnings of the worker calculated and varied in accordance with this Schedule.
(2)Subject to section 56 and subclause (3), where partial incapacity for work results from the injury, a weekly payment during the partial incapacity equal to the amount by which the total weekly earnings of the worker calculated and varied in accordance with this Schedule would exceed the weekly amount exclusive of payments for overtime or any bonus or allowance which he is earning or is able to earn in some suitable employment or business after the occurrence of the injury.
(3)An entitlement of a worker to weekly payments for an injury under this Act ceases if and when the total weekly payments for that injury reaches the prescribed amount, unless an arbitrator makes an order to the contrary under section 217, and there shall be no revival of, or increase in, that entitlement upon any subsequent increase in the prescribed amount.
(4)Nothing in subclause (3) affects the liability of an employer for, and the entitlement of a worker to, expenses as are provided for in clauses 9, 17, 18, 18A, and 19 but subject to the limitations on those expenses as provided in clauses 17(1) and 18A(1CA) and (1C).
(5)Unless otherwise authorised by WorkCover WA, compensation shall be paid by the employer to the worker at the employer's usual place of payment of wages on the employer's usual pay days or, at the request of the worker shall be sent by prepaid post to the worker’s address.
(6)A worker when fulfilling any requirement of an arbitrator made under section 156B, is deemed for the purposes of this clause to be totally incapacitated.
Clause 7 of schedule 1 is necessary for calculating the amount of compensation payable. The City is not correct when it states that cl 7 of schedule 1 does not contribute anything. Clause 7 is an essential element for the calculation of payments for incapacity based on weekly payments.
If the City's submission is correct, and s 37(3) does not include compensation for death because cl 1 ‑ cl 5 of schedule 1 are omitted, equally it does not include compensation for incapacity because cl 7 is omitted. The City has conceded that it is liable for compensation to a fire fighter for incapacity under cl 7. If the City is not liable for compensation for death or incapacity then its liability is effectively only limited to medical (cl 17), hospital (cl 18), reasonable expenses (cl 18A) and travelling expenses (cl 19).
The State submits that the City's construction is internally inconsistent. The City says that only the clauses referred to in s 37(3) have effect in a s 37(1) contract. The State submits that if this construction were to be adopted then some of the clauses referred to in s 37(3) would be redundant. For example, cl 11 defines 'weekly earnings', which, on the City's interpretation, are not payable to volunteer fire fighters under s 37(2) or s 37(3) because cl 7 of schedule 1, which provides for such payments, is not referred to in s 37(3). This begs the question: why would cl 11 be required if cl 7 did not have effect?
The State further submits that the City's construction renders portions of the Act pointless. Most obviously, s 37(2) provides for what a volunteer fire fighter is deemed to have earned 'where a reference to weekly earnings is necessary for calculating those amounts'. Since, on the City's construction, cl 7 does not apply, and there is no obligation to make weekly payments, it will never be necessary to calculate those amounts. Thus subsections (a) and (b) of s 37(2) are dead letters. Statutes should be construed so that all words have work to do.
The State submits that s 37(1)(a) does not specify the type or severity of injuries for which volunteer fire fighters should receive compensation, and similarly does not specify the manner in which the quantum of that compensation should be calculated. Instead, it stipulates, in effect, that the only insurance policies able to discharge the local government's statutory duty under the Act are those which will pay compensation to volunteer fire fighters in accordance with s 37(2) of the Act.
The State correctly submits that s 37(2) is not an operative section, in that it does not impose any free standing obligation. It sets out a mechanism by which compensation due to injured fire fighters under a policy which satisfies s 37(1)(a) is to be calculated. It is akin to a definition section. As with statutory definition sections generally, the mechanism provided in s 37(2) must be read back into s 37(1)(a) so as to provide specific content to the general obligation to obtain an insurance policy.
As the State submits, s 37(2) tells a local government what clauses it must insist upon when obtaining and keeping current an insurance policy. A local government that obtains an insurance policy under which a volunteer fire fighter, injured while acting as a member of the local government's bush fire brigade, is compensated in a manner, or to an extent, that differs from that required under s 37(2) will not have complied with their obligation under s 37(1) of the Act (s 15).
The City submits that s 37(1)(a) is a general provision. The City states that taken by itself, it could be argued that it applies all the provisions of WCIMA to the local authority's insurance obligation. However, the City contends that s 37(1) must be read in context and, it is submitted, subject to the more specific provisions of s 37(2) itself.
As the City's submission impliedly concedes, the text of s 37(2) of the Bush Fires Act creates problems for the City's submissions. In effect, the City's submissions require that the broad scope of s 37(2) be read down.
The court finds that s 37(3) needs to be read in context. The primary obligation imposed by s 37(2) is to have a policy of insurance for 'the compensation that is payable for an injury and the purposes for which it is payable are the amounts and purposes that would apply if a volunteer fire fighter were a worker and suffered that injury under' WCIMA. Since the compensation payable under WCIMA includes death and total, or partial, incapacity, a policy taken out by the City that failed to provide that cover would not meet the City's obligations under s 37(1).
The City submits that the State's construction means that words should be read 'in or out' of the Bush Fires Act in the face of the express form used.
The State submits that it is apparent from schedule 1 that the only clauses in schedule 1 which actually impose upon an employer an obligation to make any payments to or in favour of workers are cl 1 ‑ cl 5 (compensation as a result of death), cl 7 (compensation as a result of total, or partial, incapacity), cl 17 (medical and other expenses) and cl 19 (travelling expenses). The State submits that all other clauses merely provide for modifications to those basal obligations in certain circumstances.
The State further submits that the only clauses which provide for payments of a kind that would come within the ordinary meaning of the word 'compensation' are cl 1 ‑ cl 5 and cl 7. Clauses 17 and 19 provide for reimbursement of additional expenses incurred for the purposes of treating an injury suffered by a fire fighter, rather than for compensation for the injury caused to them. Clauses 1 ‑ 5, by contrast, provide for payments to be 'given ... as an equivalent for ... loss' of life. Clause 7, similarly, provides for payments to be given as an equivalent for the loss of capacity to work.
The City submits that the clauses so expressly incorporated from schedule 1 of WCIMA by s 37(3) show that the City's insurer is indeed liable and liable only for what has been termed the primary payments (by the City). The incorporated clauses all relate to such primary payments.

If the City's argument is correct then the primary payments do not include compensation for death (cl 1 ‑ 5) or total, or partial, incapacity (cl 7). Having regard to the history of workers' compensation legislation one would expect that an insurance policy relating to a worker would include compensation for both incapacity and death.
A matter which has not been explained by the City is why the Bush Fires Act would provide compensation for incapacity but not for death. It is difficult to discern any logical reason why that would be so.
The State correctly submits that s 37(3) has a distinctly different character to both s 37(1) and (2). Most obviously, the section does not contemplate and address local governments. Instead, it is addressed to insurers and has effect with respect to insurance policies provided by those insurers.
The State submits that s 37(3) is, in essence, a deeming provision. It inserts clauses into that policy if those clauses were not included in the policy as drafted.
The State submits that the evident purpose of the provision is to avoid definitional debate by insurers who might otherwise argue that the only clauses of schedule 1 to WCIMA relevant to the determination of the compensation payable to injured volunteer fire fighters are those which actually impose an obligation to pay 'compensation' (being cl 1 ‑ 5 and cl 7 of schedule 1). The effect of s 37(3) is to put beyond doubt that, for example, the reimbursement of various specified expenses comes within the scope of the word compensation (which word is not defined) as it appears in s 37(1)(a).
Given the foregoing, the State submits that the plain and ordinary meaning of the words in s 37(1) and (2) of the Act unambiguously capture cl 1 ‑ cl 5 and cl 7 of schedule 1 to WCIMA but would, without more, allow for insurers to attempt to avoid the obligations imposed by the remaining clauses of the schedule.
The State then submits that once this is appreciated it becomes clear that the purpose of s 37(3) is to include within all insurance policies obtained by local governments in accordance with s 37(1)(a) additional clauses under WCIMA that insurers might otherwise argue could be dispensed with on the basis they did not provide 'compensation'. Section 37(3) appears to have been a legislative attempt to avoid proceedings, such as these, in which an insurer would search for arguments that would call into question their obligations as set out in the legislation.
The court accepts the State's submissions. Once it is clear that 'compensation' includes death and total, or partial, incapacity, ie those areas covered by cl 1 ‑ 5 and cl 7 (but not included in the clauses enumerated in s 37(3) of the Bush Fires Act) it must be the case that the function of subsection 37(3) is as submitted by the State.
The State further submits that that purpose is confirmed when regard is had to those additional clauses of schedule 1 WCIMA (ie other than cl 1 ‑ cl 5 and cl 7) specifically listed in s 37(3), and also those not there listed.
The State submits that by including, for example, cl 8 of schedule 1 Parliament has ensured that a volunteer fire fighter whose injury prevents them from obtaining employment, even though they are otherwise capable of working, will continue to receive payments for weekly earnings - notwithstanding that such payments are not easily (or at all) classed as compensation 'for injury' (in the words of s 37(1)). That Parliament thought it appropriate to make such payments available, even though an insurer might have contended that they did not amount to compensation per se, is entirely understandable. Further, by including, for example, cl 11 Parliament makes clear that the extended definition applies not only to 'compensation that is payable' under cl 1 ‑ 5 and 7 (as set out in the opening words of s 37(2)) but also to reimbursement that is payable under other clauses.
The State further submits that the failure to incorporate cl 14 within the list in s 37(3), for example, is likewise understandable: Parliament has determined to provide injured fire fighters with comprehensive compensation for injury even where they were not employed full time at the time of their injury. To do otherwise would have effectively provided a disincentive for people not so employed to become a volunteer fire fighter, and thereby undermined the effectiveness of fire brigades under the Act.
The State's further submissions support the State's contention as to the purpose of s 37(3) of the Bush Fires Act.
The City submits that it is inconceivable that Parliament would twice have enacted a provision only importing certain clauses from schedule 1 while somehow intending that others should be 'read in'. The court does not accept this submission.
The City's submission proceeds on the premise that its interpretation of s 37(3) is correct. However, the court has concluded that clauses of schedule 1 not included in s 37(3) are relevant to the City's insurer's payment obligations to pay compensation contrary to the City's submissions.

The City's fourth point: The Bush Fires Act has its own compensation regime

The City submitted that the Bush Fires Act contains its own regime for the payment of compensation upon death or any other 'specified injury'. The City submits that the foundational provision is s 37(5), providing for the additional amount, to take the total compensation to $ 514,409.20.
Section 37(7) provides that any additional amount payable under subsection (5) shall be paid out of moneys appropriated by Parliament for that purpose.
Section 37(8) of the Bush Fires Act provides:
The amount referred to in subsection (2) and the additional amount referred to in subsection (5) are payable to the person or persons who would be entitled to receive them if a volunteer fire fighter were a worker and suffered a compensable injury under the Workers' Compensation and Injury Management Act 1981 and, in addition to those persons, shall extend ‑
(a)to a spouse irrespective of dependency upon the volunteer fire fighter; or
(aa)to a person who was living in a de facto relationship with the volunteer fire fighter immediately before the death of the fire fighter and lived on that basis with the fire fighter for at least 2 years before the death of the fire fighter irrespective of dependency upon the fire fighter; or
(b)to a child of the volunteer fire fighter if the child is dependent upon the volunteer fire fighter.
The City further submitted that s 37(8) deals with both the payment of primary amounts and of the additional amount. It then contains its own set of rules for how claims by spouses, de facto spouses and children are to be dealt with. So, this regime applies to any claims in respect of death, as a specified injury under the Bush Fires Act. In s 37(8)(a) to (b), there is notably no dependency requirement for spouses or de facto spouses. This contrasts with cl 1 of schedule 1 of WCIMA which contains quite a different regime for such persons, in relation to top‑up payments to reach the NRE. They can only claim if they had been 'wholly dependent' on the worker. The provisions of cl 1 of schedule 1 are complex both substantially and procedurally.
The City then submits that in respect of cl 1 claims under schedule 1 to WCIMA, apportionment between dependants is first referred to in cl 1(3), and then taken up in cl 1A, 1B and 1C. The Bush Fires Act again sets up its own simplified regime in this regard. Section 37(8a) of the Bush Fires Act provides for apportionment 'in accordance with the regulations'. Regulation 41 of the Bushfire Regulations 1954 as amended, sets up its own regime, which expressly incorporates part only of schedule 1 (where all claimants under the Bush Fires Act were dependants) but also sets up a separate regime for non‑dependant claimants or apportionment between dependants and non‑dependants.
The City submits that the total amount payable under s 37(5) of the Bush Fires Act and the NRE under schedule 1 of WCIMA is determined differently. See s 5 of WCIMA. From the s 37(5) amount is to be deducted any payment already made under WCIMA; this does not apply to the NRE amount. Clause 1 of schedule 1 (and the related clauses immediately following it) apply only in the case of death. The specified injury regime of the Bush Fires Act applies to death but also other serious injuries and diseases amounting to a 'specified injury'.
The City submitted that s 37(5) amount and the NRE fulfil similar functions under, respectively, the Bush Fires Act and WCIMA - namely, to provide a total compensation level and cap for each Act. As stated above in relation to the City's submissions in relation to a 'top up' the court does not accept those submissions.
The court does not accept the City's submission that there are separate regimes. Essentially the City's submissions fail once compensation for death is included in the calculation of the compensation payable and the clauses from schedule 1 are limited to those set out in s 37(3).
In considering the scope of s 37(8) of the Bush Fires Act it is important to have regard to the relevant clauses of schedule 1 of WCIMA. Clause 1 of schedule 1 provides:
Death - dependants wholly dependent - notional residual entitlement
(1)Subject to subclauses (2) and (3), where death results from the injury and the worker leaves ‑
(a)a dependant who ‑
(i)is not of a kind referred to in clause 1A; and
(ii)is wholly dependent upon the worker’s earnings;
or
(b)a child or step‑child in respect of whom an election to receive the amount of a provisional apportionment has been registered under clause 1C,
or more than one of those persons, in respect and for the benefit only of all those dependants, a sum equal to the notional residual entitlement of the worker.
(2)If death results from the injury and a worker dies leaving ‑
(a)a spouse or de facto partner; or
(b)a parent; or
(c)a child or step-child in respect of whom an election to receive the amount of a provisional apportionment has been registered under clause 1C,
or more than one of those persons, wholly dependent upon the worker’s earnings, whether or not there are other dependants wholly dependent upon the worker’s earnings, there is to be a minimum amount payable being a sum equal to the aggregate weekly payments for total incapacity of the worker at a rate calculated and varied in accordance with this Schedule as at the date of the worker’s death for a period of one year after that date.
(3)Subject to clause 1C, in the event of there being more than one dependant wholly dependent on a worker’s earnings, the amount payable under this clause is to be apportioned between them as may be agreed upon or, in default of agreement, according to the respective financial losses of support suffered by them, which apportionment is to be determined on application under Part XI.
It is important to note that, generally, compensation for death under cl 1 of schedule 1 requires 'dependency' in order to create an entitlement to compensation. Clause 1(2) of schedule 1 requires that the claimant be wholly dependent.
Subsection 37(8) of the Bush Fires Act extends the compensation payable under WCIMA to a spouse (irrespective of dependency), a de facto (irrespective of dependency if the relationship is more than two years) and a dependent child. The reference to 'shall extend' in s 37(8) must be a reference to cl 1 of schedule 1 of WCIMA. Therefore, cl 1 of schedule 1 is not excluded for the calculation of compensation by reason of s 37(3) of the Bush Fires Act.
As the State correctly submitted, compensation is ordinarily payable to the worker (see schedule 1 cl 7(5)) - ie the singular person in subsection 37(8). The plural 'persons' in subsection (8) can only arise if the worker is deceased.
Section 37(8a) provides for the apportionment to be between those persons in accordance with the regulations.
The relevant procedure provided for under the Bush Fires Act is:
(a)to determine the amount payable by way of compensation under WCIMA, including compensation for death or total, or permanent, disability and other associated amounts arising from schedule 1 of WCIMA - this amount is payable pursuant to an insurance policy conforming with s 37(1) and (2) by the City;
(b)to calculate the prescribed amount multiplied by 2.36 (s 37(5));
(c)for the State to pay the difference between the prescribed amount calculated by 2.36 and the amount payable pursuant to a conforming insurance policy (s 37(5));
(d)in the event of the death of a fire fighter the amount is to be apportioned in accordance with the regulations made pursuant to s37(8a) of the Bush Fires Act.
There is nothing about that procedure that can be said to constitute a quagmire or a rigmarole as the City contends. There is nothing unfair about that procedure.

Is s 37 to be construed as being the City's benefit?

The City submitted that the Bush Fires Act has a strong emphasis on insurance in the context of the position of local authorities in respect of injury or death suffered by a voluntary fire fighter. It submits that an important purpose of the Bush Fires Act is to assist both volunteer fire fighters and the local authorities under which they operate, to maintain a firefighting regime that serves an important societal goal, namely the protection of life, property and the environment from devastating fires which are such a hallmark of Australia, and notably rural Australia, and to do so fairly.
The City further submitted that local authorities have limited funds and limited recourse to raising funds - certainly when compared with the State Government through Parliament. It is said that the Bush Fires Act should be applied not to overburden them or discourage them from maintaining volunteer bushfire brigades.
The problem with the City's submission is that there is no evidence that obtaining insurance pursuant s 37(1) of the Bush Fires Act overburdens local governments or discourages them from maintaining bush fire brigades.
It is also important to note that a local government's obligation is to hold the relevant insurance, rather than being primarily liable for compensation. The nature of insurance is such that there is a significant difference between the amount of insurance premiums and the actual payment of an amount of any compensation.
The City submitted that LGIS entered into the current Zurich policy on the basis of the City's interpretation of the Bush Fires Act. It contends that premiums are bound to increase if the State is found to be right. The correct interpretation of a statute cannot be dependent on one party's understanding of that statute. LGIS's understanding in this regard is irrelevant. Further, there is no evidence as to the effect on premiums payable by the City if the State's submissions are accepted by the court.
The City contends that s 37(5) is a provision beneficial to local authorities and should be construed 'beneficially, and as generously as the language of the section allows. It should certainly not be construed in a narrow or pedantic way'. Compare Nilant v Macchia [2000] FCA 1528; (2000) 104 FCR 238 [42]. The City submits that such approach is justified because there is ambiguity in s 37 but as Pearce & Geddes Statutory Interpretation in Australia, (8^th ed, par 9.2, p 358) point out:
It should not be thought … that the beneficial interpretation approach only applies where there is ambiguity in the legislation.
The State submits that s 37(5) is intended (as is the whole of s 37) to benefit volunteer fire fighters, rather than local governments.
Although it is clear that s 37 is intended to benefit bush fire fighters it is difficult to see that it is intended to benefit local governments. A bush fire fighter who is entitled to compensation receives the same amount of compensation irrespective of whether a local government or the state government pays the compensation.
The court does not accept that s 37 is to be read so as to benefit local governments.
A further point made by the City is that s 37 is 'beneficial to the fire fighters themselves, because they needn't go through the rigmarole and jump through the hoops of the Workers Compensation Act in the case of death'.
WCIMA and WorkCover are an established part of the courts and tribunals of this State. To suggest that utilising WCIMA and WorkCover constitutes a 'rigmarole' or a 'quagmire' is simply not a tenable proposition.

Originating summons procedure

At the hearing the State raised the question of whether an originating summons procedure was appropriate to resolve an issue such as this between the parties. Since both parties in effect agreed to abide by the decision it is unnecessary to resolve that issue in these proceedings.

Conclusion

The court finds that the City of Albany was obligated to take out insurance to cover payment of death benefits, pursuant to schedule 1 of WCIMA (the schedule 1 death benefits). The 'additional amount' payable by the State pursuant to s 37(5) of the Bush Fires Act was the 'prescribed amount' multiplied by 2.36, less the schedule 1 death benefits, ie the State of Western Australia's calculation of the amount payable by the City of Albany of $339,664.33 and that of the State of Western Australia of $174,744.87 is the correct calculation of the parties' respective obligations.
The court will hear from the parties as to the form of the declaration and costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
THE HONOURABLE JUSTICE J Curthoys
7 MARCH 2019

1	Weekly payments (for lost wages 4 to 11/1/2016)	$1,205.56
2	Royal Flying Doctor Service	$7,238.22
3	St John Ambulance	$1,832.00
4	Health Corporate network: (a) Sir Charles Gairdner Hospital (b) Albany Hospital	$21,014.00 $245.00
5	Funeral Expenses	$9,319.55
TOTAL	$40,854.33