Comensoli v WQA

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2023 0146

ARCHBISHOP PETER A COMENSOLI	First Applicant
TRUSTEES OF THE CHRISTIAN BROTHERS	Second Applicant
v
WQA (A PSEUDONYM)	Respondent

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JUDGES:	BEACH, KENNEDY and WALKER JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	13 May 2024
DATE OF JUDGMENT:	23 May 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 104
JUDGMENT APPEALED FROM:	[2023] VSC 657 (Gorton J)

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DAMAGES – Personal injury damages – Matters to be considered in reduction of damages – Disability support pension payments – Newstart allowance payments – ‘Preclusion period’ under Social Security Act 1991 (Cth) – Payments made outside preclusion period not repayable to Commonwealth – Whether payments made outside preclusion period required to be taken into account in assessment of common law damages – No error in primary judge’s conclusion that payments not required to be taken into account in assessing damages – Appeal dismissed.

DAMAGES – Personal injury damages – Cardinal principle that injured party cannot recover more than has been lost – Whether legislative intention can be discerned that statutory benefits to be enjoyed cumulatively upon plaintiff’s entitlement to damages – Indicia of legislative intent – Primary judge correct that legislative intent was that statutory benefits to be enjoyed cumulatively upon plaintiff’s entitlement to damages – Appeal dismissed.

Social Security Act 1991 (Cth), ss 17, 23, 1160, 1169, 1170, 1178 and 1179, and Pt 3.14.

Manser v Spry (1994) 181 CLR 428, applied. National Insurance Company of New Zealand Ltd v Espagne (1961) 105 CLR 569; Redding v Lee (1983) 151 CLR 117; Haines v Bendall (1991) 172 CLR 60, discussed. Partridge v Hobart City Council (2012) 22 Tas R 29, referred to.

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Counsel
First and Second Applicants:	Mr B Walker SC with Mr P Santamaria
Respondent:	Mr TP Tobin SC with Ms C Spitaleri
Solicitors
First Applicant:	Wotton + Kearney
Second Applicant:	Carroll & O’Dea
Respondent:	Arnold Thomas & Becker

BEACH JA
KENNEDY JA
WALKER JA:

In January 2020, WQA[1] (‘the plaintiff’), who was born in 1948, commenced a proceeding in the Trial Division of the Supreme Court against Archbishop Peter A Comensoli and Trustees of the Christian Brothers (‘the defendants’) claiming damages for injuries alleged to have been suffered as a result of sexual abuse that took place between 1959 and 1961. The plaintiff’s claim included a claim for damages for past loss of earnings from January 1964 (being the month he claimed he would have entered the workforce but for his injuries) to October 2015 (the date when he reached retirement age).
[1]A pseudonym.
The proceeding was listed for trial on 7 February 2023. On that day, however, the parties informed the Court that the proceeding had settled, subject to the question of whether certain social security payments received by the plaintiff should be deducted from the settlement amount agreed by the parties. The defendants’ contention was that the social security payments paid to the plaintiff (which were not repayable by him) should be taken into account in the calculation of the plaintiff’s damages for past economic loss, and thus deducted from the settlement sum. The plaintiff’s position was that, notwithstanding that the payments were not repayable, he was entitled to retain them, and the whole of the settlement sum was therefore payable to him by the defendants.
The dispute between the parties as to whether or not the social security payments should be deducted from the settlement sum was heard before Gorton J on 24 October 2023. On 16 December 2023, in accordance with reasons delivered on 15 November 2023,[2] the judge made orders in favour of the plaintiff by giving the following answers to the following questions:
A.Should social security payments paid to the plaintiff in the [period from 1 July 1997 to 29 October 2015] be taken into account in the calculation of damages for past economic loss, in circumstances where they are not repayable to the Commonwealth?---No.
B.Is the Disputed Amount[3] or any part thereof payable to the plaintiff?---Yes.
[2]WQA v Archbishop Comensoli [2023] VSC 657 (‘Reasons’).
[3]The term ‘Disputed Amount’ was defined, in a statement of agreed facts, to mean the sum ‘representing the amount of social security payments received by the plaintiff in the period from 1 July 1997 to 29 October 2015’.
The defendants now seek leave to appeal (and, if leave is granted, to appeal) from the judge’s orders on the following proposed grounds of appeal:
1.The trial judge erred in finding that the provisions of the Social Security Act 1991 revealed an intention on the part of the legislature to establish a scheme which precludes a court from considering compensation affected payments in assessing a plaintiff’s economic loss damages.
2.The trial judge erred in failing to apply the principles in Manser v Spry,[4] which were binding upon him.
[4](1994) 181 CLR 428 (‘Manser’).
The defendants contend that the orders of the judge should be set aside and, in their place, orders should be made answering question A, ‘Yes’, and question B, ‘No’. For the reasons which follow, leave to appeal should be granted but the appeal should be dismissed.

The facts in more detail

The facts underlying the dispute between the parties were the subject of agreement.[5] Shortly prior to the date on which the trial was fixed for hearing, the proceeding was settled for a global settlement amount (‘the settlement sum’). The settlement sum included an allowance for damages for past economic loss.
[5]They were set out in a statement of agreed facts filed by the parties in September 2023.
The proceeding was settled subject to the question of whether a sum (referred to by the parties as ‘the disputed amount’) representing the amount of social security payments received by the plaintiff in the period from 1 July 1997 to 29 October 2015 should be deducted from the settlement sum. As we have said, that question was reserved for determination by a judge of the Trial Division.
The disputed amount was agreed to be $245,529. By agreement between the parties, the defendants withheld the disputed amount pending the resolution of the issue in question by the trial judge. The disputed amount was made up of Newstart Allowance payments (paid to the plaintiff between 1 July and 19 August 1997) and Disability Support Pension payments (paid to the plaintiff between 10 September 1997 and 29 October 2015). The parties agreed that the payments which made up the disputed amount were paid to the plaintiff ‘for a condition that resulted from the claimed injuries’.
At the time the parties entered into the settlement, it was agreed between them that the disputed amount may be the subject of recovery provisions under Part 3.14 of the Social Security Act 1991 (Cth). It was also agreed that, under a ‘repayment formula’ contained in that Act, there would be no liability to repay any part of the disputed amount. On 2 June 2023, the relevant authority (Services Australia) confirmed to the plaintiff’s solicitors that no repayment was required to be made out of any settlement sums received by the plaintiff.

The issue in more detail

As has been said many times before, it is a ‘settled principle’ governing the assessment of compensatory damages, in a claim in tort, that the injured party should receive compensation in a sum which, so far as money can do, will put that party in the same position as he or she would have been if the tort had not been committed.[6] As the trial judge observed,[7] a corollary of that settled principle is that an injured party cannot recover more than he or she has lost.[8]
[6]Livingstone v Rawyards Coal Co (1880) 5 App Cas 25, 39 (Lord Blackburn); Redding v Lee (1983) 151 CLR 117, 133 (Mason and Dawson JJ) (‘Redding’); Haines v Bendall (1991) 172 CLR 60, 63 (Mason CJ, Dawson, Toohey and Gaudron JJ) (‘Haines’); Lewis v Australian Capital Territory (2020) 271 CLR 192, 200 [2] (Kiefel CJ and Keane J), 208 [30]–[31] (Gageler J), 214 [50] (Gordon J) and 239 [139] (Edelman J).
[7]Reasons, [3].
[8]Haines (1991) 172 CLR 60, 63.
The application of this principle would suggest that payments made to an injured plaintiff, which were paid for a condition that resulted from the claimed injuries, should be taken into account in the assessment of that plaintiff’s damages. Otherwise, such a plaintiff would recover more than he or she has lost or — to use the words of the defendants — the plaintiff would be double-dipping.
As is well known, however, there are particular types of payment which may be made to injured plaintiffs in respect of their claimed injuries, and which are not to be taken into account later in the assessment of their damages.[9] Examples of these kind of payments include benefits paid under an insurance policy obtained by an injured plaintiff; and amounts raised by family and friends in order to provide assistance to an injured plaintiff. In some of these cases, it has been said that it would be wrong to reduce such a plaintiff’s damages by reason of payments of this kind, because to do so would result in a ‘windfall’ to the wrongdoer who caused the plaintiff’s injury.
[9]See National Insurance Company of New Zealand Ltd v Espagne (1961) 105 CLR 569, 573 (Dixon CJ), 598–9 (Windeyer J) (‘Espagne’).
In Espagne,[10] Dixon CJ referred to payments of this kind as having the ‘distinguishing characteristic’ of being conferred on a plaintiff independently of the existence of any right to damages; and which were made for the enjoyment of the plaintiff, and not provided in relief of any liability in others to fully compensate that plaintiff. As was later said by the High Court in Manser:[11]
To ascertain whether a statutory benefit possesses the ‘distinguishing characteristic’ that it is to be enjoyed independently of, and cumulatively upon, the right to damages, the court must endeavour to discover the intention of the legislature.[12]
[10]Ibid.
[11](1994) 181 CLR 428, 436 (Mason CJ, Brennan, Dawson, Toohey and McHugh JJ).
[12]Their Honours footnoted this passage in their judgment with references to Espagne (1961) 105 CLR 569, 573, 599–600; Redding (1983) 151 CLR 117, 125, 142, 163 and Haines (1991) 172 CLR 60, 74–5.
To resolve the issue in dispute between the parties in the present case, it is thus necessary to examine the relevant provisions pursuant to which the plaintiff received the social security payments paid to him, so as to endeavour to discover the intention (if any) of the legislature. However, before doing so, and in order to put those provisions in their proper context, it is necessary to look at the legislative history of those provisions.

Relevant legislative history

For present purposes, it is sufficient to commence the analysis by describing the statutory scheme as it was in 1947. At that time, the relevant provisions were contained in what was then called the Social Services Consolidation Act 1947 (‘the 1947 Act’). Later, the 1947 Act was renamed the Social Services Act 1947; and later again it was renamed the Social Security Act 1947. Over the years, the 1947 Act was renamed, by changing both the text of its name and its year.[13]
[13]For example, in 1958, the 1947 Act was known as the Social Services Act 1947–1957. Additionally, and making the tracing of the history of the relevant provisions in the 1947 Act more complicated, on 2 July 1987, the provisions of the 1947 Act were renumbered and re-lettered by the operation of s 50 of the Social Security Amendment Act 1987.
Ultimately, on 1 July 1991, the 1947 Act was rewritten in the form of the Social Security Act 1991 (‘the 1991 Act’). The 1991 Act commenced operation on 1 July 1991. Immediately after it commenced, the Social Security (Rewrite) Transition Act 1991 commenced (‘the Rewrite Act’).[14] Section 3 of the Rewrite Act provided for the repeal of the 1947 Act. Thus, in essence, on 1 July 1991, the 1947 Act was repealed and re-enacted by the 1991 Act. For convenience, in the balance of these reasons, we will use the term ‘the Act’ to refer to the 1947 Act when describing legislative provisions which were in force prior to 1 July 1991, and then to refer to the 1991 Act when describing the legislative provisions which were in force on and after 1 July 1991.
[14]See s 2 of the Rewrite Act.
In 1947, s 115(4) of the Act provided that the Director-General of Social Services could give a direction that the whole or any part of sickness benefits paid to a plaintiff were to be repaid to the Commonwealth out of any other compensation or damages recovered by the person to whom the sickness benefits had been paid. The 1947 Act did not contain any similar provisions in respect of other social security benefits that might be payable to an injured plaintiff.
In 1948, s 115 of the Act was amended by s 19 of the Social Services Consolidation Act (No 2) 1948 (‘the 1948 Act’). In particular, by s 19 of the 1948 Act, s 115(4) of the Act was replaced by new sections 115(4)–(10). Broadly speaking, the new provision in s 115 provided for the reduction of the amount of sickness benefits payable to an injured person by the amount of any compensation payment or damages; and permitted the Commonwealth to recover sickness benefits paid to any person who had received compensation or damages in respect of a condition for which the sickness benefits had been paid.[15]
[15]As to the requirement that the sickness benefits and the compensation had to be paid in respect of the same incapacity for the provisions of the Act to have operative effect, see the consideration by the Full Court of the Federal Court (Keely, Fisher and Davies JJ) of the relevantly identical provisions of the Act which were in force in 1982 in Secretary to the Department of Social Security v Siviero (1986) 13 FCR 431 (‘Siviero’).
In 1961, in Espagne, the High Court determined that in assessing the damages to be awarded in an action for personal injuries caused by negligence, the award of an invalid pension to an injured plaintiff pursuant to the Act was to be disregarded, both in its operation up to the date of trial and in its future operation. In March 1983, a majority of the High Court again held, in Redding, that in the assessment of personal injury damages, payments of an invalid pension (both actual and prospective) should be disregarded. The majority followed the decision in Espagne.
The High Court’s judgment in Redding dealt also with the matter of Evans v Muller.[16] In Evans, the High Court had to consider whether unemployment benefits should be taken into account in assessing an injured plaintiff’s claim for past loss of earnings. The Court held by majority[17] that in the assessment of damages to be awarded in an action for personal injuries caused by negligence, unemployment benefits received by the injured plaintiff pursuant to the Act should be deducted from the assessment of the plaintiff’s loss of wages suffered up to the time of trial and arising from the negligence of the defendant.
[16](1983) 151 CLR 117 (‘Evans’).
[17]Mason, Wilson, Deane and Dawson JJ, Gibbs CJ, Murphy and Brennan JJ dissenting.
In October 1986, the Act was amended by the Social Security and Veterans’ Affairs (Miscellaneous Amendments) Act 1986 (‘the 1986 Act’). Section 48 of the 1986 Act inserted Part VIIIAA, which contained ss 135SA–135SG, into the Act. Those provisions provided for the recovery of pensions paid pursuant to the Act on or after 1 May 1987 from both the person to whom the pension was paid, and also from the person liable to make a payment by way of compensation to the person to whom the pension was paid. For the purposes of the new provisions, ‘pension’ was defined to include a variety of pensions, benefits and allowances payable under the Act, including the invalid pension and unemployment benefits.[18]
[18]See s 135SA(1) as inserted into the Act by s 48 of the 1986 Act (noting that s 135SA was renumbered on 2 July 1987 as s 151 of the Act by the operation of s 50 of the Social Security Amendment Act 1987).
Clause (8) of the outline of the explanatory memorandum for the Bill for the 1986 Act summarised the proposed amendments as follows:
The current arrangements applying to sickness beneficiaries receiving compensation would be extended to invalid pensioners, unemployment beneficiaries and persons receiving rehabilitation allowance or sheltered employment allowance who commence to receive that pension, benefit or allowance after 1 May 1987.[19]
[19]Explanatory Memorandum, Social Security and Veterans’ Affairs (Miscellaneous Amendments) Bill 1986, p 2.
In similar terms, the Minister, in his Second Reading Speech when introducing the Bill for the 1986 Act, said:
The current arrangements by which sickness benefit is either reduced or recovered by reference to compensation payable to the beneficiary will be extended to invalid pension, unemployment benefit, rehabilitation allowance and sheltered employment allowance, as from May 1987.[20]
[20]Commonwealth, Parliamentary Debates, House of Representatives, 10 October 1986, 1866 (Brian Howe, Minister for Social Security).
In relation to s 48 of the 1986 Act, the explanatory memorandum provided that this section would insert a new Part VIIIAA into the Act, ‘which would extend the current arrangements limiting “double-dipping” into both sickness benefit and the compensation system’. It was then said that the new Part would cover, amongst other things, ‘invalid pension … [and] unemployment benefit … as well as sickness benefit’.[21]
[21]Explanatory Memorandum, Social Security and Veterans’ Affairs (Miscellaneous Amendments) Bill 1986, p 51.

Current provisions of the Act

The relevant provisions of the Act have been the subject of amendment a number of times since 1986, including the rewriting of the Act in 1991. It is not necessary to detail those amendments, as the parties are agreed that there are no relevant differences between the regime that was introduced in 1986 and the regime now found in the Act.[22]
[22]Reasons, [9].
Part 3.14 of the Act contains ss 1160 to 1184L and is headed ‘Compensation recovery’. Section 1160(1) provides that this part of the Act operates in certain specified circumstances to, amongst other things ‘require the repayment of some or all of a person’s compensation affected payment’.
The word ‘compensation’ is defined, by s 17(1) of the Act, to have the meaning given to it in s 17(2). Relevantly for present purposes, s 17(2) provides that ‘compensation’ means ‘a payment of damages … or … a payment … in settlement of a claim for damages … that is made wholly or partly in respect of lost earnings or lost capacity to earn resulting from personal injury’.
The expression ‘compensation affected payment’ is defined in s 17(1) of the Act to mean, amongst other things, ‘a disability support pension’ or ‘a social security benefit’, or ‘a former payment type’. ‘Former payment type’ is defined in s 17(1) to mean, amongst other things:
(t)a payment under this Act as previously in force declared by the Minister, by legislative instrument, to be a former payment type for the purposes of Part 3.14.
The term ‘social security benefit’ (referred to in the definition of ‘compensation affected payment’) is defined in s 23 of the Act to mean, amongst other things, a ‘jobseeker payment’. It is not in dispute between the parties that what was formerly referred to as a Newstart allowance is now called a Jobseeker payment.[23]
[23]It appears that this change in nomenclature occurred in March 2020. Indeed, in the version of the Act in force prior to 20 March 2020, ‘social security benefit’ was defined to include a ‘Newstart allowance’.

Section 1169 of the Act provides that if a person receives or claims a compensation affected payment and receives a lump sum compensation payment, the compensation affected payment is not payable during ‘the lump sum preclusion period’. Section 1170(4) provides that the number of weeks in the lump sum preclusion period is the number worked out using the formula: ‘Compensation part of lump sum’ divided by ‘Income cut-out amount’.[24]
[24]Section 1170(5) provides that if the number worked out using this formula is not a whole number, the number is rounded down to the nearest whole number.
While s 1170 provides for the lump sum preclusion period to begin and end on different dates in different circumstances, relevantly for the present case, s 1170(3) has the effect that the plaintiff’s lump sum preclusion period began on the day on which his loss of earnings or loss of earning capacity began, and ended at the number of weeks worked out using the formula under s 1170(4). Thus, the plaintiff’s lump sum preclusion period in this case ended before he commenced to receive any of the payments which make up the disputed amount.
Sections 1178 and 1179 govern the recovery of compensation affected payments paid during the lump sum preclusion period. Specifically, the Commonwealth is entitled to recover from a person who receives a lump sum compensation payment and compensation affected payments the smaller of ‘the compensation part of the lump sum compensation payment’ and the sum of the compensation affected payments made during the lump sum preclusion period.
Given that the lump sum preclusion period is calculated by dividing the ‘Compensation part of lump sum’ by the ‘Income cut-out amount’, it is necessary to describe how these amounts are calculated.
Section 17(1) of the Act defines the expression ‘compensation part’, in relation to a lump sum compensation payment, as having the meaning given to it by ss 17(3) and (4). The meaning of ‘compensation part of a lump sum compensation payment’ is then dealt with in ss 17(3) and (4) of the Act as follows:
Compensation part of a lump sum
(3)Subject to subsection (4), for the purposes of this Act, the compensation part of a lump sum compensation payment is:
(a)50% of the payment if the following circumstances apply:
(i)the payment is made (either with or without admission of liability) in settlement of a claim that is, in whole or in part, related to a disease, injury or condition; and
(ii)the claim was settled, either by consent judgment being entered in respect of the settlement or otherwise; or
(ab)50% of the payment if the following circumstances apply:
(i)the payment represents that part of a person’s entitlement to periodic compensation payments that the person has chosen to receive in the form of a lump sum; and
(ii)the entitlement to periodic compensation payments arose from the settlement (either with or without admission of liability) of a claim that is, in whole or in part, related to a disease, injury or condition; and
(iii)the claim was settled, either by consent judgment being entered in respect of the settlement or otherwise; or

(b)if those circumstances do not apply — so much of the payment as is, in the Secretary’s opinion, in respect of lost earnings or lost capacity to earn, or both.

(4)Where a person:
(a)has received periodic compensation payments; and
(b)after receiving those payments, receives a lump sum compensation payment (in this subsection called the LSP); and
(c)because of receiving the LSP, becomes liable to repay an amount (in this subsection called the Repaid Periodic Compensation Payment — RPCP) equal to the periodic compensation payments received;

then, for the purposes of subsection (3), the amount of the lump sum compensation payment is:
LSP – RPCP

Turning to the ‘income cut-out amount’, this is the amount calculated by using the formula set out in s 17(8) of the Act. It is not necessary for present purposes to set out that formula. It is sufficient to note that relevantly, so far as the plaintiff’s claim is concerned, the income cut-out amount is $1,166.[25]
[25]Reasons, [11].

The Reasons

The judge summarised the operation of the current provisions of the Act by saying that, where a person has received damages that include a component attributed to loss of earning capacity, the Act provides that:
(a)during the preclusion period,[26] compensation affected payments are not payable to a person otherwise entitled to receive them; and
(b)the Secretary may recover from that person any compensation affected payments that have been received during the preclusion period. The amount recoverable is capped at the smaller of the component of the damages attributed to loss of earning capacity and the sum of the compensation affected payments made.[27]
[26]For convenience, we will follow the course adopted by the judge (see Reasons [11]) of referring to the ‘lump sum preclusion period’ simply as ‘the preclusion period’ in the balance of these reasons.
[27]Reasons, [12] (footnotes omitted).
The judge said that, in practical terms, this means that:
(a)A successful plaintiff has to repay to the Commonwealth all or some of the compensation affected payments he or she has received during the preclusion period; and

(b)A plaintiff might, if the preclusion period extends in the future, also be unable to obtain compensation affected payments for the balance of the preclusion period.[28]
[28]Ibid [13].

The judge observed that there was no dispute that any compensation affected payments made during the preclusion period were to be ignored in the assessment of damages for loss of earning capacity. His Honour noted that there was no basis for reducing loss of earning capacity damages by amounts that the plaintiff was not permitted by the Act to retain. There was, thus, no double-dipping in respect of those payments.[29]
[29]Ibid [15].
The judge identified the issue in dispute between the parties in the following terms:
The problem that arises concerns the situation where compensation payments have been or may in the future be made after the preclusion period has finished. In this case, it is agreed that the plaintiff has received $245,529.00 in Newstart Allowances or as a Disability Support Pension since the preclusion period expired many years ago. It is also agreed (and there would also be no doubt) that those payments are ‘compensation affected payments’.
The Social Security Act 1991 (Cth) does not expressly deal with what is to happen with respect to payments made or that might be made after the preclusion period. This question may be particularly significant in claims for damages for historic child sex abuse because the preclusion period will often have finished many years prior to a settlement or verdict. But the issue might arise in any damages action.[30]
[30]Ibid [16]–[17].
The judge then said that the problem was to be answered ‘by divining the intention of the Commonwealth when it made the payments it did’.[31] His Honour noted that all the payments were made after 1991, saying that the Commonwealth’s intention ‘must be gleaned from the terms of [the 1991 Act] read in its context, including a consideration of the types of payments with which it deals’.[32]
[31]Ibid [18].
[32]Ibid.
After summarising the parties’ submissions, the judge concluded that the terms of the Act, read in context, revealed an intention on the part of the legislature to replace the ‘previous complex and uncertain common law position’ with a ‘single overall scheme for the treatment of social security payments’. His Honour said that that scheme precluded the receipt of ‘compensation affected payments’ from being considered in a damages assessment and provided for their repayment, or partial repayment, to the Commonwealth in accordance with a ‘relatively straightforward formula’.[33] His Honour said that this conclusion followed from the following:
(a)The new arrangement specifically eschews any differentiation between different types of benefits received. The definition of a ‘compensation affected payment’ is wide and includes both benefits that under the common law might have been ignored in the assessment of damages and benefits that would have led to a reduction in the assessment of damages. It is inherently unlikely that the legislature would have intended to remove the complexity of the common law position altogether for the duration of the preclusion period but have intended its return for the period after the preclusion period.
(b)The calculation of the preclusion period necessarily takes place after damages have been assessed. This indicates an intention that damages should be capable of being assessed without having first to consider what the preclusion period would be. This cannot be done if payments received outside the preclusion period must be taken into account in assessing those damages. The logical sequence by which the damages are assessed first, and then the preclusion period calculated, and then the repayment obligations determined, strongly suggests that the legislature intended that the damages assessment should be independent of the benefits received including benefits paid after the expiration of the preclusion period.
(c)Associated with the above, there would be considerable complexity in the application of the process urged by the defendants. If the preclusion period had likely not finished at the time of the assessment, a jury would probably have to be told that if it were to award a particular sum of damages then the preclusion period would be until such and such a date, and that the jury would then have to consider the prospect that the claimant might receive unemployment benefits after that date. But if the jury were to award a different sum of damages then the preclusion period would be until some other date, and the jury would then have to consider the prospects that the claimant might receive unemployment benefits after that different date. A similar problem would exist if the preclusion period had expired. The jury would probably have to be told that if it were to award a particular sum of damages then the preclusion period would finish on one date, and so the jury should take into account a particular amount of benefits received, or if the jury were to award a different sum of damages then the preclusion period would finish on another date and so it should take into account a different amount of benefits received. These would be circular and tortuous processes in any damages assessment, particularly by a jury, and are unlikely to have been intended.
(d)There is a clear intention, at least for the duration of the preclusion period, to remove the benefit that a wrongdoer would otherwise obtain from the provision by the Commonwealth of certain social security payments, such as unemployment benefits, to an injured party. The requirement on the injured party to repay those benefits out of the damages award ensures that the damages paid by the wrongdoer are not to be reduced. Further, the legislation enables the Commonwealth to recover those payments directly from the wrongdoer even if the injured party does not wish to bring an action. These were significant changes to the common law position in favour of the Commonwealth (as the payer of the benefits) and against the interests of the wrongdoer. On the other hand, there is nothing in the legislation that reveals an intention to benefit wrongdoers by providing that social security benefits are to be taken into account in order to reduce a damages assessment.
(e)The new arrangement can require an injured party to repay to the Commonwealth, and allow the Commonwealth to recover directly from a wrongdoer, social security payments that are disconnected from the injury caused by the wrongdoer. This is because there is no requirement that a ‘compensation affected payment’ be made for an injury caused by the wrongdoer and for which damages are to be assessed. The new arrangement simply sets a time-frame, and provides for the recovery of all benefits paid during that time-frame. For example, if a claimant suffers the onset of an unrelated but separately-disabling condition during the preclusion period that entitles that person to benefits that are not attributable to the injury caused by the wrongdoer, those benefits, too, have to be repaid and can be recovered directly from the wrongdoer (subject to the maximums provided). In this way, too, the new arrangement promotes simplicity, to the benefit of the Commonwealth, over the complexities associated with the common law, and indicates that the Commonwealth was intending to introduce a comprehensive scheme rather than merely to work within the common law principles.[34]
[33]Ibid [20].
[34]Ibid.
After referring to the extrinsic materials relating to the 1986 Act,[35] the judge turned to the decision of the Full Court of the Supreme Court of Tasmania in Partridge v Hobart City Council.[36] The relevant issue in Partridge was whether disability support pension payments, paid to Mrs Partridge since about November 2004, had to be taken into account in the assessment of her personal injury damages. The Tasmanian Full Court concluded that they were not to be taken into account. In relation to payments made during the preclusion period, the Court noted that those payments were required to be repaid because they were ‘fully recoverable by the Commonwealth’.[37] In relation to those payments made outside the preclusion period, the Court held that, applying Espagne, Redding and Evans, the payments could not be taken into account in reduction of Mrs Partridge’s damages.[38] The judge said that he agreed with the views expressed by the Tasmanian Full Court in Partridge.[39]
[35]Ibid [22]–[24] (see [22]–[24] above).
[36](2012) 22 Tas R 29 (Crawford CJ, Blow and Wood JJ) (‘Partridge’).
[37]Ibid 70 [236].
[38]Ibid.
[39]Reasons, [25].
Finally, the judge dealt with submissions made by the defendants that Manser (the decision referred to in the defendants’ second proposed ground of appeal) compelled the conclusion that the disputed amount was required to be taken into account in the assessment of the plaintiff’s damages for past economic loss; and that Partridge was of no assistance to the plaintiff, because it was decided without any reference to Manser. The judge rejected these submissions, saying:
I do not consider that Manser v Spry is against the conclusion that I have reached. The High Court confirmed that the exercise is one of ascertaining the legislative intent. Its reference to the three criteria was not intended, as I read it, to be exhaustive in all circumstances or to exclude the normal process of ascertaining that intent having regard to the legislation considered as a whole and in its context. I note that the Court in Manser v Spry quoted with approval the following passage from Adams v Ascot Iron Foundry Pty Ltd:
The difficulty lies in attempting to extract from the Act an actual meaning or intention with reference to the question which has to be resolved. The question may be one to which the Parliament or the draftsman of the Act did not in fact advert at all. Nevertheless, if it is possible to do so, it is necessary to extract from the Act indications of what was intended. If one cannot find any real indications pointing one way or the other, or if one finds indications both ways which are evenly balanced, it may be that the question must then be resolved by taking the view that the dominant rule … should operate.
In this case, I consider that the statutory intention may, for the reasons I have given, be extracted from the Social Security Act 1991 (Cth). Further, to the extent that Manser v Spry focuses on the ‘nature of the benefit received’, it must be recalled that the Social Security Act 1991 (Cth) eschewed any distinctions of significance along those lines by its wide definition of a ‘compensation affected payment’. It would only be possible to consider the implications from a particular form of payment in the way done in Manser v Spry if it were already concluded that the question of payments outside the preclusion period were to be governed by the common law.[40]
[40]Ibid [27]–[28] (citations omitted).

Defendants’ submissions in this Court

Under proposed ground 1, the defendants submitted that the consequence of the way in which the judge construed the provisions of the Act is that the plaintiff ‘will be doubly compensated for a prior period of work incapacity, in contradiction to the settled common law principle governing compensatory damages — that a plaintiff cannot recover more than he has lost’. The defendants observed that this principle is ‘the cardinal principle or concept; one which is absolutely firm and which must control all else’.[41]
[41]The defendants referred to Haines (1991) 172 CLR 60, 63 for these propositions.
The defendants submitted that the effect of Part 3.14 of the Act is to regulate a recipient’s ‘compensation affected payments’ during the preclusion period. It was submitted that Part 3.14, however, ‘says nothing about a tortfeasor’s rights or obligations in a damages proceeding, or anything about the court’s processes in such a proceeding, or about the interaction of Part 3.14 with the common law’.
The defendants observed that, as noted by the judge,[42] the Act does not expressly deal with what is to happen with respect to payments made outside the preclusion period. They then submitted that it did not follow from this failure to deal with such payments, that the legislature intended that the ‘cardinal principle of the assessment of damages’ had no application. They also submitted that there were no indicia of any legislative intention that, while benefits paid to a plaintiff during the preclusion period were repayable to the Commonwealth, benefits paid outside that period were to be enjoyed by the plaintiff cumulatively upon his or her entitlement to damages.
[42]Reasons, [17].
The defendants dealt with what his Honour said at Reasons [20][43] as follows:
(1)While the grouping of different forms of social security benefits in the definition of ‘compensation affected payment’ ‘doubtless achieves greater simplicity in recovering those payments’, it did not follow that the legislature sought to retrospectively alter the character of payments brought within that definition at the time they were made; nor did it follow that the legislature had introduced any scheme which prevented the common law from considering the nature of benefits paid pursuant to the Act.[44]
(2)The judge erred in relying upon his conclusions about the complexity of the provisions in the Act; his conclusions about the complexity he found would exist if the defendant’s submissions were accepted; and his conclusions about the complexity of the common law position prior to 1 May 1987; and then in concluding that it was unlikely that the legislature would have intended to remove the pre-May 1987 complexity in respect of benefits paid during the preclusion period, but at the same time to have intended that there remain a significant level of complexity in the treatment of benefits paid under the Act outside the preclusion period.[45] None of these matters (individually or collectively) justified a departure from the cardinal principle that an injured party cannot recover more than he or she has lost. In any event, the present case, ‘as in the majority of like cases’, did not involve any complexity.
(3)The judge erred at Reasons [20(e)] when he concluded that the provisions of the Act were disconnected from the injury caused by the wrongdoer. The defendants submitted that the relevant provisions of the Act were connected to the injury caused by the wrongdoer ‘by the nature of a plaintiff’s claim, and what a plaintiff puts in issue in the damages proceeding’.
(4)To the extent that the judge considered the issue of legislative intent by comparing what the legislature might have intended would be the position for an injured party with what the legislature might have intended should be the position for a ‘wrongdoer’ liable to pay damages,[46] it should be remembered that not every defendant so liable is necessarily a wrongdoer. Some defendants merely stand in the shoes of an original wrongdoer.[47]
[43]See [41] above.
[44]Cf Reasons, [20(a)].
[45]Cf Reasons, [20(a)], [20(c)] and [20(e)].
[46]See, for example, Reasons [20(d)].
[47]See, for example, ss 7 and 8 of the Legal Identity of Defendants (Organisational Child Abuse) Act 2018.

The defendants then noted that all of the payments making up the disputed amount had been received after the end of the preclusion period. While the defendants conceded that there will be other cases that are ‘less clear-cut’, they submitted that a court is nevertheless required to (and can) assess appropriate damages in such cases.
Finally under proposed ground 1, the defendants submitted that the judge erred in not meaningfully engaging with the possibility that the intention of the legislature might not be discernible, a possibility which was the subject of specific consideration and analysis by the High Court in Manser. The defendants also submitted that, regardless of that matter, the judge erred in inferring a legislative intention to ‘oust the application of fundamental common law principles’.
Under proposed ground 2, the defendants submitted that the judge failed to ‘engage in a fulsome way with the authority in Manser’. Manser required the judge, when considering the treatment of benefits conferred by the Act, first, to construe, if possible, the legislative intent with respect to three indicia (financial source of the payment, the presence or otherwise of a repayment provision, and the nature of the payments received); and secondly, in the event that a legislative intention was not able to be construed, the court was to rely on the cardinal concept or rule against double compensation.
The defendants submitted that the proper application of Manser would have led the judge to conclude that the disputed amount had to be taken into account in the assessment of the plaintiff’s damages for past economic loss.

Consideration

The issues raised by the defendants under proposed grounds 1 and 2 are interrelated, both involving a consideration of the High Court’s decision in Manser. It is therefore convenient to deal with both proposed grounds of appeal together. However, before doing so, it is necessary to give a brief description of Manser.

Manser v Spry

The issue in Manser was whether compensation paid or payable under s 54(5) of the Workers Rehabilitation and Compensation Act 1986 (SA) had to be taken into account in assessing the damages of a plaintiff/employee for loss and damage for which a third party tortfeasor was liable at common law.
After referring to relevant authority, including the passage in Haines setting out the settled principle governing the assessment of compensatory damages to which we have already referred,[48] and Dixon CJ’s judgment in Espagne, to which we have also already referred,[49] the High Court, in a passage we have already extracted in part,[50] said:
To ascertain whether a statutory benefit possesses the ‘distinguishing characteristic’ that it is to be enjoyed independently of, and cumulatively upon, the right to damages, the court must endeavour to discover the intention of the legislature.
There are three possible indicia of a relevant legislative intention: the financial source of the benefit, the presence of a provision which requires a repayment of a statutory benefit out of the damages awarded or paid and the nature of the benefit.[51]
[48]See [10] above.
[49]See [13] above.
[50]Ibid.
[51]Manser (1994) 181 CLR 428, 436 (footnote omitted).
Their Honours discussed these indicia by reference to further authority, including Gibbs CJ’s judgment in Redding, before then saying:
Finally, if all indicia of intent fail, the ‘settled principle governing the assessment of compensatory damages’ which the majority stated in Haines v Bendall must be applied. In Adams v Ascot Iron Foundry Pty Ltd, Walsh JA, who described that principle as the ‘dominant rule’, said:
The difficulty lies in ascertaining the relevant intention from an Act, which does not expressly declare any intention one way or the other. The difficulty ... is in attempting to extract from the Act an actual meaning or intention with reference to the question which has to be resolved. The question may be one to which the Parliament or the draftsman of the Act did not in fact advert at all. Nevertheless, if it is possible to do so, it is necessary to extract from the Act indications of what was intended. If one cannot find any real indications pointing one way or the other, or if one finds indications both ways which are evenly balanced, it may be that the question must then be resolved by taking the view that the dominant rule ... should operate.[52]

Did the judge err in concluding that the disputed amount was not to be taken into account in assessing the plaintiff’s damages?

[52]Ibid 437 (footnote omitted).

We commence our analysis with a consideration of the defendants’ complaints that the judge misapplied, or failed to apply, the principles in Manser. In our view, there is no substance in these complaints.
In considering whether statutory payments made to an injured plaintiff should be taken into account in the assessment of that plaintiff’s damages, Manser undoubtedly requires, as a first step, the Court to endeavour to discover the intention of the legislature. That is precisely what the judge did at Reasons [20].
Manser then identifies ‘three possible indicia of a relevant legislative intention’. These were identified as being ‘the financial source of the benefit, the presence of a provision which requires a repayment of a statutory benefit out of the damages awarded or paid and the nature of the benefit’. Nothing in Manser suggests that these three possible indicia are the only indicia of a relevant legislative intention (a conclusion also reached by the judge at Reasons [27]). Nor did the defendants seek to suggest that understanding of Manser. That the High Court was not saying that there were only the three indicia identified in the judgment may be gleaned from their Honours’ later reference to what should occur ‘if all indicia of intent fail’ and their Honours’ endorsement of the course to be taken ‘if one finds indications both ways’.[53] The possibility that there might be two or more indications ‘both ways’ suggests that their Honours contemplated cases where there might be more than the three indications which they identified.[54]
[53]See the passage in the judgment of Walsh JA in Adams v Ascot Iron Foundry Pty Ltd (1968) 72 SR (NSW) 120, 135, endorsed in Manser at 181 CLR 428, 437 (emphasis added).
[54]In any event, even if the High Court was properly understood as identifying only these three possible indicia, in our opinion, these indicia point to the judge in the present matter having correctly determined the matter, for the reasons we give later in the judgment.
The Reasons disclose that, as part of his analysis, the judge considered the three indicia identified in Manser as well as other indicia, including the consequences of the competing constructions, as part of his Honour’s consideration of the first step in the required analysis — namely, the endeavouring to discover the intention of the legislature step. Specifically, the judge’s references to ‘complexity’[55] were part of his Honour’s analysis of the consequences of adopting the defendants’ submissions as to the construction of the relevant provisions of the Act and then to discern the legislative intention (if any) which was to be inferred.
[55]Reasons, [20(a)], [20(c)].
As has been said before, it is permissible, in determining which of two competing interpretations of a statute ought to be adopted, to have regard to the consequences of each interpretation.[56] Similarly, it cannot be doubted that in construing a statute in order to determine a legislative intent, it is permissible to have regard to the consequences of each of the competing conclusions. The defendants accepted as much in oral argument.
[56]Waters v Diesel Holdings Pty Ltd [2024] VSCA 77, [44] (Walker JA, with whom Ferguson CJ and Ginnane AJA agreed).
In our view, notwithstanding the submissions of the defendants, there is considerable force in the judge’s observations about the complexity of attempting to take into account compensation affected payments made outside the preclusion period. We will first consider the matter by reference to cases which settle, and then consider cases which are fought to judgment.
Contrary to the defendants’ submissions, it seems to us that the majority of cases where this issue (what to do with compensation affected payments made outside the preclusion period) arises are likely to be cases where compensation affected payments have been made throughout the preclusion period and then continued beyond the end of that period. It is really only the abolition of the limitation defence in cases of the present kind that has given rise to a smaller cohort of cases where the preclusion period ends before the first compensation affected payment is made. That said, the resolution of this issue, involving (as it does) issues of statutory construction, cannot be determined by whether there are more of one type of case than another.
We consider first the consequences of the defendants’ approach in relation to a proceeding, in which compensation affected payments have been made throughout the preclusion period and beyond, that settles. In such a proceeding, the compensation part of the lump sum compensation payment is 50 per cent of the settlement amount.[57] At that point in the analysis, the parties can readily calculate the preclusion period and determine the precise amount of compensation affected payments that fall outside the preclusion period and should, on the defendants’ approach, be taken into account in the settlement. Those compensation affected payments would presumably be taken into account by reducing the settlement by the amount of them that had been paid after the end of the preclusion period.
[57]See s 17(3) of the Act.
However, performing that calculation would then necessarily result in the settlement amount being reduced. That would then result in a corresponding reduction in the compensation part of the lump sum compensation payment (that amount being 50 per cent of the new settlement amount calculated after taking into account the original compensation affected payments made outside the preclusion period).
The result of performing that exercise would be that the preclusion period would be shortened, resulting in another part of the compensation affected payments being paid after the end of the new shortened preclusion period. This would then require those additional payments to be taken into account in further reduction of the settlement sum.
Performing that exercise would then result in a reduction in the settlement sum, a corresponding reduction in the preclusion period, and the requirement to take into account additional compensation affected payments. Indeed, were it not for certain rounding provisions in the Act,[58] this iterative process might theoretically never end. One might ask, rhetorically: could this ever have been the intention of the legislature?
[58]The effect of the rounding provision in s 1170(5) means that once the preclusion period, as calculated by the formula in s 1170(4), falls below one week, the preclusion period is rounded to zero weeks, effectively terminating the need to perform any further calculations.
In argument, senior counsel for the defendants sought to respond to this issue by submitting that no iterative calculations of the kind we have referred to would be required to be performed; and that, in taking into account benefits paid outside the preclusion period, it would be sufficient for a deduction from common law damages to be performed only once. No explanation was proffered, however, as to why this was so; or why an injured claimant would then be permitted to retain the benefit of compensation affected payments made outside the preclusion period that would actually apply to the newly recalculated settlement sum. The defendants could not point to any statutory provision that might prevent the application of the statutory regime in the manner discussed above. In the circumstances, the defendants’ submissions on this issue must be rejected.
The complexity identified above, in respect of proceedings which settle, is even greater in a case where the injured person prosecutes their proceeding against the wrongdoer to judgment. In those circumstances, s 17(3) of the Act provides that the compensation part of the lump sum compensation payment is ‘so much of the payment as is, in the Secretary’s opinion, in respect of lost earnings or lost capacity to earn, or both’. So, in such a proceeding, after judgment, the Secretary would determine the compensation part of the lump sum compensation payment; the preclusion period would then be calculated; and the payments made beyond the end of the preclusion period would then be taken into account in reduction of the amount assessed by the Court. None of these matters would be known or calculable until after the Secretary had advised the parties of the amount which, in his or her opinion, was awarded in respect of loss of earnings and lost earning capacity.
If the defendants’ submissions were adopted, then once the Secretary had expressed the opinion required by the terms of s 17(3), an issue could then potentially arise as to whether the Secretary would need to express another opinion about the amount of the compensation part of the lump sum compensation payment after the amount assessed by the Court has been reduced. This might give rise to a new (shorter) preclusion period, with the potential for further iterative calculations of the kind that might need to be performed when a proceeding terminates by settlement.
In any event, quite how a judge, or a jury, assessing damages might calculate a preclusion period for the purpose of working out what benefits paid under the Act are not recoverable (and thus to be taken into account in the assessment of an injured person’s damages), without knowing what the Secretary’s opinion will be as to how much of the assessment is in respect of loss of earnings or loss of earning capacity or both,[59] is almost impossible to say.
[59]See s 17(3)(b) of the Act.
In oral argument, senior counsel for the defendants sought to address this issue by submitting that evidence could be called (presumably from the Secretary or an appropriate Commonwealth officer) as to the opinion the Secretary would be likely to form pursuant to s 17(3)(b) of the Act if judgment were to be entered for particular amounts. Again, we reject these submissions. Quite how such evidence might be given, and/or what the consequences for the parties might be if the Secretary subsequently formed an opinion different from one about which evidence was given, was not explained by the defendants.
While it may be accepted that courts are required to do their best in assessing damages, even in circumstances of considerable complexity, it cannot have been the intention of the legislature, when it enacted Part 3.14 of the Act, that the parties or a court might be required to undertake exercises of the kind referred to above in determining how to take into account compensation affected payments made outside the preclusion period.
Before endeavouring for ourselves to discover the intention of the legislature,[60] we will deal with the defendants’ submission that the judge erred at Reasons [20(e)] when he concluded that the provisions of the Act were disconnected from the injury caused by the wrongdoer.
[60]As required by Espagne and Manser.
The judge was correct to conclude that there is no requirement that a ‘compensation affected payment’ be made in respect of an injury caused by the wrongdoer. Any doubt about whether the Commonwealth might recover payments that are disconnected from the injury the subject of the plaintiff’s cause of action is resolved by the operation of s 1160(2),[61] which provides:
This Part [Part 3.14] applies whether or not there is any connection between the circumstances that give rise to the person’s qualification for the compensation affected payment and the circumstances that give rise to the receipt of compensation by the person or the person’s partner.
[61]In oral argument, the defendants appeared to accept that this section supported the judge’s conclusion in relation to the possibility of a disconnection, but submitted that the legislation is ‘very complicated’, and ‘the fact that there are, at the edges, some consequences which may not always accord with a normative sense of efficiency or fairness, even, is really not to the point’.
Thus, there is no substance in the defendants’ criticism of the judge’s conclusion in Reasons [20(e)].
We now turn to consider for ourselves what legislative intention (if any) is revealed by the relevant provisions of the Act. Legislative intention, like the purpose of a statute, resides in the text of the statute.[62] In our opinion the legislative intention can be divined from the relevant statutory provisions in the present case.
[62]See Lacey v Attorney-General for the State of Queensland (2011) 242 CLR 573, 592 [44] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Momcilovic v The Queen (2011) 245 CLR 1, 175–6 [441]–[442] (Heydon J); Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378, 389–390 [25] (French CJ and Hayne J). See also Work Health Authority v Outback Ballooning Pty Ltd (2019) 266 CLR 428, 460–1 [74]–[77] (Gageler J).
It is appropriate to start with some remarks about the history of the legislative treatment of benefits where a person received a compensation payment. Prior to the commencement of the 1986 Act, the only benefits paid under the Act which were recoverable from a person who received an award of damages were sickness benefits. The extrinsic material relied upon by the defendants, and to which we have already referred,[63] discloses two possible purposes of the amendments sought to be made by the provisions of the 1986 Act: first, that the repayment provisions of the Act applying to sickness benefits should be extended to other forms of benefit, including invalid pensions and unemployment benefits; and secondly, that ‘double-dipping’ into both benefits under the Act and compensation should be ‘limit[ed]’.[64] Nothing in the text of the 1986 Act or the extrinsic materials supports a conclusion that there was a legislative intention to eliminate double-dipping.
[63]See [22]–[24] above.
[64]Explanatory Memorandum, Social Security and Veterans’ Affairs (Miscellaneous Amendments) Bill 1986, p 51 (emphasis added). See [24] above.
Turning to the statutory provisions themselves, it is noteworthy that s 1160(1) provides that Part 3.14 of the Act operates to reduce a person’s compensation affected payment; to render a person’s compensation affected payment not payable; and to require the repayment of some or all of a person’s compensation affected payment. Neither that section, nor any other section in the Act, makes any express reference to limiting, much less prohibiting or eliminating, double-dipping. Nonetheless, given that these consequences follow the receipt of compensation, it appears to us that it was the intention of the legislature to limit double-dipping to the extent the legislature considered appropriate. That is reflected in the Parliament’s selection of a limited period — the preclusion period — as the period during which the person’s compensation affected payments are affected in the three ways specified.
The presence of statutory provisions requiring the repayment of benefits paid pursuant to the Act is a strong indicium that it is the intention of the legislature that those benefits be enjoyed independently of, and cumulatively upon, any right to damages.[65] In our view, the fact that the statutory mechanism for calculating the repayment might not result in the entirety of the benefits paid under the Act being repaid does not detract from this conclusion. Moreover, we are unable to divine any legislative intention that compensation affected payments should be treated differently, depending on whether they were paid during or outside the preclusion period, when determining whether they should be taken into account in the assessment of damages.
[65]Manser (1994) 181 CLR 428, 436–7; Redding (1983) 151 CLR 117, 125.

Returning to the legislative history, prior to 1 May 1987, the Commonwealth’s ability to recover payments made under the Act was limited to sickness benefits. The amendments which came into force on and after 1 May 1987 considerably broadened the Commonwealth’s ability to recover payments made under the Act to people who received, or were entitled to receive, compensation outside the provisions of the Act. However, as part of these amendments, the legislature chose to enact a scheme of some complexity which had the capacity to capture benefits that might have been paid for reasons unconnected with the reasons for which damages might be payable, but not capture all of the benefits paid as a result of the injury the subject of that claim for damages.[66]
[66]See s 1160(2) of the Act.
The legislative history of the Act, and the level of detail in the provisions governing the repayment of benefits paid under the Act, suggests to us that, in enacting the relevant provisions, the legislature intended, in effect, to cover the field, so that any and all benefits paid under the Act (whether paid inside or outside any calculated preclusion period) were only to be dealt with in accordance with the provisions of the Act, without any of them having to be taken into account in the assessment of a claimant’s common law damages.
Moreover, the inability to say with certainty, prior to the finalisation of a claim for damages, the precise amount that will be repayable under the provisions of the Act, whether the claim is settled or prosecuted to a judgment, is another strong indicium that compensation affected payments made outside the preclusion period are intended to be enjoyed independently of, and cumulatively upon, any right to damages. Relatedly, as we observed above, it cannot have been the intention of the legislature that the parties or a court might be required to undertake iterative exercises of the kind discussed above when determining how to take into account compensation affected payments made outside the preclusion period; yet there is no statutory provision that would operate to preclude that process from occurring.
Our conclusion is also supported by the fact that amounts paid during the preclusion period (and which have to be repaid) can include benefits paid under the Act for injuries which are unrelated to the injuries for which the relevant claim for damages is being made.[67] Thus, in some cases, the fact that benefits paid to a plaintiff outside the preclusion period will not be taken into account in an assessment of damages, will be offset by a deduction from the assessment of unconnected benefits paid during the preclusion period — resulting in no breach of the cardinal principle and/or no overcompensation of that plaintiff.
[67]Ibid.
We accept that it is a cardinal principle governing the assessment of compensatory damages that an injured party cannot recover more than he or she has lost, as the authorities in this area disclose. Nonetheless, the authorities also demonstrate that, if it can be established that, in the case of statutory benefits, there was a legislative intention that such benefits be enjoyed independently of, and cumulatively upon, the right to damages, then a plaintiff, by the receipt of such benefits, may permissibly be compensated for more than he or she has lost. As the High Court recently observed in Obian v The King,[68] in a different context, common law rules are not always absolute. The cardinal principle relied upon by the defendants in the present case gives way to the legislative intention which we have discerned from the Act, which permits the plaintiff to enjoy the benefits paid under the Act outside the preclusion period, cumulatively upon his right to damages.
[68][2024] HCA 18, [1] (Gageler CJ, Gordon, Gleeson, Jagot and Beech–Jones JJ).
Finally, we observe that the defendants accepted in oral argument that an available way to approach the question of the Parliament’s intention is to observe that, at a high level of generality, the payments in question are subject to recoupment, and that is a sufficient indication that a payment of that kind need not be taken into account, even though not all of the payments in fact made are subject to recoupment. Having accepted that such an approach was open, the defendants sought to persuade us that such an approach ought not be adopted. We did not find those submissions persuasive. Once it is accepted that such an approach is available, the conclusion that it is the correct approach is, in our view, inescapable in light of the authorities and the features of the statutory scheme to which we have referred.
For the reasons given above, the judge did not err when he concluded that the payments, which made up the disputed amount, had the distinguishing characteristic that they were to be enjoyed independently of, and cumulatively upon, the plaintiff’s right to damages. Having correctly so concluded, there was no occasion to go onto the second step referred to in Manser of applying the ‘settled principle governing the assessment of compensatory damages’.[69] It follows that both proposed grounds of appeal must be rejected.
[69]Manser (1994) 181 CLR 428, 437.
In reaching the above conclusion, it has not been necessary for us to address specifically the submissions made by the parties as to the correctness or otherwise of the reasoning in Partridge. It is sufficient for us to say that, having regard to our analysis above, we are of the view that the result in Partridge — that Mrs Partridge’s disability support pension, paid both during and outside the preclusion period, was not to be taken into account in the assessment of her damages — was correct.

Conclusion

While the defendants’ proposed appeal was sufficiently arguable to justify granting them leave to appeal, the appeal must be dismissed.
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[2024] VSCA 104

23 May 2024