Director of Public Prosecutions v Roads Corporation (Trading as Vic Roads) (ABN 62760960460); Director of Public Prosecutions v Downer Works (ACN 008 709 608)
[2019] VCC 1025
•1 July 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-14-00353
Case No. CR-14-00354
Indictment No. C1409516.2
Indictment No. C1409516.1
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ROADS CORPORATION (T/as VIC ROADS) (ABN 61 760 960 480) |
| and |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DOWNER EDI WORKS PTY LTD (ACN 008 709 608) |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 July 2018 (Mention); 7 and 8 November 2018 | |
DATE OF RULING: | 1 July 2019 | |
CASE MAY BE CITED AS: | DPP v Roads Corporation (Trading as Vic Roads) (ABN 62760960460); DPP v Downer Works (ACN 008 709 608) | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1025 | |
RULING
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Subject: CRIMINAL LAW
Catchwords: Two claims for compensation orders under s85B of the Sentencing Act 1991 – whether the respondents can rely on s138B of the Accident Compensation Act 1985 (as amended) as a defence to one claim – whether the discretion contained in s85F of the Sentencing Act 1991 should be exercised – whether issues of contribution and apportionment would be better dealt in common law proceedings
Legislation Cited: Occupational Health and Safety Act 2004, ss21(1), 21(2)(a), 21(2)(e) and 23(1); Sentencing Act 1991, ss85A-86M; Accident Compensation Act 1985 (as amended), ss92A, s92B, s92C and s138B; Victims of Crime Assistance (Amendment) Act 2000
Cases Cited:Dotmar EPP Pty Ltd v R [2015] VSCA 241; Director of Public Prosecutions (Vic) v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676; Kaplan v Lee-Archer (2007) 15 VR 405; R K v Mirik and Mirik [2009] VSC 14; DPP v Downer EDI Works Pty Ltd & Anor [2015] VSCA 287; Dura Constructions (Aust) Pty Ltd v Dovigi [2004] VSC 252; Brooks v Meade [2017] VSC 172; Bentley v Furlan [1999] 3 VR 63; Moresco v Budimir [2015] VSC 51; Colonial Range Pty Ltd v CES-Queen (Vic) Pty Ltd and Delta Pty Ltd [2016] VSCA 328
Ruling:
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APPEARANCES: | Counsel | Solicitors |
| For the Applicants | Initially Mr J Brett QC (on the Mention dated 27 July 2018) and later Ms J Forbes QC and Mr D Seeman | Arnold Thomas Becker |
| For the First Respondent | Mr I McDonald | K & L Gates |
| For the Second Respondent | Mr D Masel QC | Wootton Kearney |
HIS HONOUR:
1 This ruling is in respect of Applications made by Ms Nora Marshall and Mr James Zagaretos for “compensation orders” to be made against Downer EDI Works Pty Ltd, which I shall refer to as “Downer” and Roads Corporation (trading as VicRoads), which I shall refer to as “VicRoads”, pursuant to s85B of the Sentencing Act 1991.
2 Those acting on behalf of Downer and VicRoads (“the respondents”) submit that Nora Marshall has no entitlement to a “compensation order” under s85B as a result of the operation of s138B of the Accident Compensation Act 1985 (“the ACA”). The respondents also submit that the Court should exercise the discretion contained within s85F of the Sentencing Act 1991 to refuse to hear the application by James Zagaretos on the basis of the complexity attending such application and, in particular, issues of contribution to any “compensation order” by others not involved in this application and, also, issues surrounding the making of any “compensation order” in respect of the “aggravation” injury claimed by James Zagaretos.
3 I should add that the respondents also submit that if the Court was against them in respect to the application of s138B of the ACA, then the Court should also exercise the discretion contained in s85F of the Sentencing Act 1991 to refuse to hear the application of Ms Nora Marshall on the basis of the complexity attending such application, in particular, issues of contribution to any “compensation order” by others not involved in this application.
4 This matter came on for mention on 27 July 2018, on which date it was fixed to be heard on 7 and 8 November 2018 in relation to the matters raised by the respondents.
5 Various orders were made for written submissions to be made and exchanged prior to such hearing dates.
6 Ultimately, five outlines of submissions were made:
(a) Submissions on behalf of VicRoads, dated 10 October 2018;
(b) Outline of Submissions by Downer, dated 10 October 2018;
(c) Applicants’ submissions in reply, dated 24 October 2018;
(d) Downer’s Outline of Submissions in reply, dated 29 October 2018; and
(e)Applicants’ supplementary submissions in reply, dated 3 November 2018.
7 Each of the parties spoke to their various submissions over 7 and 8 November 2018. Reference was made to a “book of documents” prepared by the solicitors acting on behalf of VicRoads. When necessary, I will refer to such book.
The Applications made by Nora Marshall and James Zagaratos
8 Nora Marshall lodged an application pursuant to s85B of the Sentencing Act 1991 on or about 11 April 2018.[1] In that application, Nora Marshall asserts that compensation is sought for “Chronic Major Depressive Disorder”.
[1]See Tab 30 of the book of documents
9 James Zagaretos lodged an application pursuant to s85B of the Sentencing Act 1991, also on 11 April 2018. In his application, he describes the injury for which compensation is sought to be:
(a) Chronic Major Depressive Disorder;
(b) aggravation of pre-existing Depression, Anxiety and Insomnia.
10 In her application, Nora Marshall asserted that she would rely on the following expert witnesses and medical material:
(a)Ms Tania Williams, an integrative medical practitioner, whose report is dated 7 February 2013;
(b) Dr Satish Patel, general practitioner, whose report is dated 17 May 2017;
(c)Dr David Weissman, a consultant psychiatrist, who medico-legally examined Nora Marshall on 31 August 2017 at the behest of her solicitors and supplied a report dated the same date.
11 In his application, James Zagaretos supplied the following medical and psychiatric/psychological material:
(a)a report, again from Dr Satish Patel, general practitioner, dated 22 May 2017;
(b) a report from the psychologist, Ray Steenveld, dated 29 October 2016;
(c)a report from Dr David Weissman, consultant psychiatrist, who medico-legally examined James Zagaretos on 14 September 2017 at the behest of his solicitors and supplied a report dated the same date.
12 Both Nora Marshall and James Zagaretos, claim compensation for pain and suffering. I refer to the document dated 7 August 2018,[2] wherein Nora Marshall also claims various types of expenses. James Zagaretos makes no claim for any type of expense. It is to be noted that paragraph 3 of that document, relating to s85B(2)(d) of the Sentencing Act, is not to be relied on.
[2]See Tab 31 of the book of documents
Background to the applications
13 As at 20 October 2011, Downer had successfully tendered for a road resurfacing project from VicRoads for asphalting works, including a stretch of Canterbury Road near the corner of Bayswater Road, Bayswater.
14 Downer, being the principal contractor, engaged some contractor firms to carry out aspects of the paving work under the contract with VicRoads. Such contractors included Statewide Traffic Control Pty Ltd (“Statewide”), which employed Mr Harry Zagaretos (“Zagaretos”) as a pedestrian traffic controller, and also U-Sweep Pty Ltd (“U-Sweep”), which employed Mr Wayne Pollard (“Pollard”), who was a driver of a street sweeper used on the site.
15 On 30 November 2011, Zagaretos was aligning bollards which separated the large traffic lane from the worksite, while the street sweeper was operating along the length of the site, at times close to the bollards. While Zagaretos was attending to the bollards and had his back turned to the sweeper, the sweeper reversed towards him and ran over him, causing the death of Zagaretos.
16 Such event prompted an investigation by Worksafe and ultimately proceedings were issued against both Downer and VicRoads, alleging breaches of the Occupational Health and Safety Act 2004 (“OHSA 2004]).
17 On 23 January 2017, Indictment No. C1409516 was listed before the Court. That indictment alleged three offences pursuant to the OHSA 2004 against both Downer and VicRoads.
18 That Indictment was initially filed before her Honour Judge Davis on 18 February 2015. After ensuing argument, a case stated was referred to the Court of Appeal, with both accused challenging the validity of the charges, on the basis that the conduct in question was governed, not by the OHSA 2004, but by the Road Safety Act 1986. The challenge failed (see Director of Public Prosecutions (DPP) v Downer Edi Works Pty Ltd and Roads Corporation T/as VicRoads [3]).
[3](2015) 47 VR 688
19 On 23 January 2017, the Court was informed that the prosecution against VicRoads was resolved, in that VicRoads would plead guilty to one offence under the OHSA 2004. Accordingly, the Director of Public Prosecutions filed Indictment C1409516.2 against VicRoads, pleading one charge – to wit, failing to provide and maintain safe plant or systems that was contrary to s21(1) and s21(2)(a) of the OHSA 2004. On that date, a representative from VicRoads was arraigned and pleaded guilty to that charge. The matter was then adjourned to be fixed for plea.
20 Over the period from 23 to 30 January 2017, pre-jury empanelment argument ensued in relation to charges against Downer. On 30 January 2017, Indictment No. C14099516.1 was formally filed, containing three charges against Downer – to wit, failing to provide and maintain a system of work contrary to s21(1) and s21(2)(a) of the OHSA 2004; failing to provide adequate information, instruction, training or supervision that was contrary to s21(1) and s21(2)(e) of the OHSA 20004, and failing to ensure that people other than employees of the employer were not exposed to risks to their health or safety arising from the conduct of the undertaking of the employer contrary to s23(1) of the OHSA 2004.
21 On 27 January 2017, a jury was empanelled and a representative of Downer was arraigned and there were pleas of not guilty to the three charges. Over the period from 7 March to 8 March 2017 two juries were discharged, with a new jury being empanelled on 8 March 2017 with, again, the representative of Downer arraigned in front of the jury and pleaded not guilty to each of the three charges.
22 After a trial lasting approximately twenty days from when the third jury was empanelled, the jury delivered, on 11 April 2017, verdicts of guilty in relation to each of those charges.
23 A plea hearing was undertaken on 26 and 27 June 2017 in relation to both Downer and VicRoads, and on 1 December 2017 each of those parties was sentenced to various fines.[4]
[4]See Reasons for Sentence in respect of Downer and VicRoads at Tab 29 of the book of documents
24 Workplace safety is now governed by the OHSA 2004, which came into force on 1 July 2005, with the repeal of the Occupational Health and Safety Act 1985 (the “1985 Act”). The OHSA 2004 imposed two principal safety duties on Victorian “employers”. The first is the employer’s duty to provide, so far as is reasonably practicable, a safe working environment for its employees,[5] and the second is the employer’s duty to ensure, so far as reasonably practicable, that “persons other than [its employees] are not exposed to safety issues as a result of the conduct of the undertaking”.[6] In both cases, the employer is obliged to eliminate safety risks or, where that is not reasonably practicable, to mitigate the risks so far as practicable.[7]
[5]See s21 of the OHSA 2004
[6]See s23 of the OHSA 2004
[7]Save for the exception contained in s32 of the OHSA 2004 which imposes liability for reckless conduct that “places … another person in a workplace in danger of serious injury”.
25 The term “employee” is defined in s5(1) of the OHSA 2004 to mean:
“… a person employed under a contract of employment or contract of training … ;”
The term “employer” is defined in s5(1) of the OHSA 2004 to mean:
“ … a person who employs one or more other persons under contracts of employment or contracts of training;”.
26 I refer again to s21(3) of the OHSA 2004 and note that for the purposes of s21(1) and s21(2) of the OHSA 2004, a reference to “employee” not only includes those who are defined to be an “employee” of the employer charged, but also refers to any independent contractor engaged by the employer and any employees of the independent contractor.
27 However, s21(3) of the OHSA 2004, only has operation in relation to ss(1) and ss(2) of s21 and has no application to s23 of the OHSA 2004. Accordingly, the reference in ss(1) of s23 of the Act “to persons other than employees of the employer” would extend to all persons, other than those persons employed under a Contract of Employment or Contract of Training with the subject employer.
28 Accordingly, the charges against Downer and VicRoads in relation to s21(1) and s21(2)(a) of the OHSA 2004 extends to both the contractors, Statewide and U-Sweep, and in particular extends to Zagaretos, who was an employee of Statewide. Furthermore, in relation to the charge against Downer pursuant to s23(1), such charge also extends to the employees of, amongst others, Statewide, being employees on the site who were not employed by Downer.
29 It is also to be stressed that the offences created by the OHSA 2004 are “risk-based, not outcome-based offences”. In Dotmar EPP Pty Ltd v R,[8] Priest J, in the Court of Appeal, stated at paragraph [22]:
“With respect, the fallacy inherent in that approach lies in the assumption that the seriousness of an offence under the OHSA is necessarily to be gauged by whether death or injury has been caused (or, for that matter, by whether there is an absence of death or injury). Such an approach equates the gravity of the consequences of a breach — that is, whether the breach resulted in death or injury, or neither death nor injury — with the gravity or seriousness of the breach. The OHSA is concerned generally with risks to health and safety; and, under Part 3, concerned specifically with the duties owed with respect to health and safety. It is the extent of the failure to ensure that employees are not exposed to risk to their health and safety which determines the objective gravity of the offence. The consequences of the failure generally do not. That is not to say that the fact of death or injury occurring is necessarily irrelevant. The occurrence of an accident, resulting in death or injury of a particular kind, may inform an assessment of, first, the existence of the risk, and, secondly, the nature and seriousness of that risk.”[9]
(Footnotes omitted.)
[8][2015] VSCA 241
[9]See also Director of Public Prosecutions (Vic) v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676 at paragraph [3] sf
30 I also refer to the relatively recent Court of Appeal decision of Director of Public Prosecutions (DPP) (Vic) v Vibro-Pile (Aust) Pty Ltd,[10] wherein the Court of Appeal (consisting of Maxwell P, Redlich and Whelan JJA) stated at paragraphs [3] and [5]):
“3Axiomatically, proof of a breach of the OHSA does not require proof that the breach caused actual harm to any person.[11] The offences created by the Act (and by its 1985 predecessor) are risk-based, not outcome-based, offences. The breach consists in the employer’s failure to eliminate or reduce a risk to employee safety. The occurrence of death or injury is of evidentiary significance only. It is not an element of the offence.
…
5 Crucially, the prosecution does not need to prove that the employer’s breach ‘caused’ the accident, or that the taking of particular safety measures would have changed the course of events on the day in question. Put another way, the prosecution does not need to establish that the defendant employer should have anticipated the risk of events unfolding precisely as they did on the day of the fatal accident.”
[10][2016] VSCA 55
[11]Reference was made to the High Court decision of Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 [13].
31 Pollard, the driver of the street sweeper which struck Zagaretos, was charged under s25(1)(b) of the OHSA 2004, in that he failed to take reasonable care as an employee for the health and safety of persons who may be affected by his acts or omissions at the workplace.[12]
[12]See Tab 28 which contains, among other documents, the Indictment and Prosecution Opening
32 Pollard pleaded guilty to such offence on 12 February 2014. Judge Allen convicted Pollard and sentenced him to a community correction order for a period of two years, over which time Pollard was to be under supervision, perform 500 hours of unpaid community work and be assessed and treated for any mental-health issues.[13]
[13]See Tab 28 of the book of documents
The legislation under which the Applications are made
33 I refer to the relevant part of the Sentencing Act 1991, that is to say, Subdivision (1) of Division 2 of Part 4 of the Sentencing Act 1991. Such Subdivision is headed “Compensation” and more particularly “Compensation for pain and suffering etc”. Subdivision (1) consists of ss85A – 85M.
34 Subdivision (1) of Division 2 of Part 4 reads:
“85A Definitions
(1) In this Subdivision—
“compensation order” means an order under section 85B(1);
“injury” means—
(a) actual physical bodily harm; or
(b)mental illness or disorder or an exacerbation of a mental illness or disorder, whether or not flowing from nervous shock; or
(c) pregnancy; or
(d) grief, distress or trauma or other significant adverse effect; or
(e)any combination of matters referred to in paragraphs (a), (b), (c) and (d) arising from an offence—
but does not include injury arising from loss of or damage to property;
“medical expenses” includes dental, optometry, physiotherapy, psychology treatment, hospital and ambulance expenses;
“sexual offence” means an offence under Subdivision (8A), (8B), (8C), (8D) or (8E) of Division 1 of Part I of the Crimes Act 1958 or under any corresponding previous enactment or an attempt to commit any such offence or an assault with intent to commit any such offence.
(2) References in this Subdivision to the victim of an offence must be construed having regard to the definition of injury in subsection (1).
85B Compensation order
(1) If a court—
(a) finds a person guilty of an offence; or
(b) convicts a person of an offence—
it may, on the application of a person who has suffered any injury as a direct result of the offence, order the offender to pay compensation of such amount as the court thinks fit for any matter referred to in paragraphs (a) to (d) of subsection (2).
(2) A compensation order may be made up of amounts—
(a) for pain and suffering experienced by the victim as a direct result of the offence;
(b)for some or all of any expenses actually incurred, or reasonably likely to be incurred, by the victim for reasonable counselling services as a direct result of the offence;
(c) for some or all of any medical expenses actually and reasonably incurred, or reasonably likely to be incurred, by the victim as a direct result of the offence;
(d) for some or all of any other expenses actually and reasonably incurred, or reasonably likely to be incurred, by the victim as a direct result of the offence, not including any expense arising from loss of or damage to property.
(3) In subsection (2) offence includes, in relation to a person who has been found guilty or convicted of an offence that was treated by the court as a representative or sample charge, any other occurrence of the same offence involved in the course of conduct of which the charge was representative or a sample.
(4) In making a compensation order the court may direct that the compensation be paid by instalments and that in default of payment of any one instalment the whole of the compensation remaining unpaid shall become due and payable.
85C Application for compensation order
(1) An application for a compensation order—
(a) must be made within 12 months after the offender is found guilty, or convicted, of the offence; and
(b) may be made—
(i) by the victim; or
(ii) on the victim's behalf by any person other than the offender if the victim is a child or is incapable of making the application by reason of injury, disease, senility, illness or physical or mental impairment; or
(iii)on the victim's behalf—
(A) if the sentencing court was a court other than the Magistrates' Court, by the Director of Public Prosecutions; or
(B) if the sentencing court was the Magistrates' Court, by the Director of Public Prosecutions, the informant or police prosecutor.
(2) Nothing in subsection (1)(b)(iii) requires the Director of Public Prosecutions or the informant or police prosecutor (as the case requires) to make an application on behalf of a victim.
85D Extension of time for making application
(1) A court may, on the application of a person who wishes to apply for a compensation order, extend the time within which an application for a compensation order may be made if it is of the opinion that it is in the interests of justice to do so.
(2) A court may extend time under subsection (1) before or after the time expires and whether or not an application for an extension is made before the time expires.
(3) A court must not extend time under subsection (1) without giving the offender a reasonable opportunity to be heard on the matter.
85E Proceeding on an application
(1) In a proceeding on an application for a compensation order a party—
(a)may appear personally; or
(b) may be represented by—
(i) a legal practitioner; or
(ii) with the leave of the court, by any other person.
(2) A proceeding in a court on an application for a compensation order made by or on behalf of a child or other incapable person must be taken to be a civil proceeding for the purpose of any provision of an Act or rule of court relating to—
(a)the appointment or removal, and the power or authority, of a litigation guardian in a civil proceeding in that court; or
(b)the administration of money ordered to be paid to a child or such an incapable person—
and any such provision applies in relation to a proceeding on an application for a compensation order with any necessary modifications.
85F Court must not refuse to hear and determine application except in certain circumstances
(1) A court must not refuse to hear and determine an application for a compensation order unless, in its opinion, the relevant facts do not sufficiently appear from—
(a) evidence given at the hearing of the charge; or
(b) any statement of the material facts relevant to the charge given to a court in a proceeding for the offence by the prosecution and not disputed by or on behalf of the accused; or
(c) the available documents—
together with admissions made by or on behalf of any person in connection with the application.
(2) In subsection (1)(c) the available documents means—
(a)any written statements or admissions which were made for use, and would have been admissible, as evidence on the hearing of the charge; or
(b)the depositions in the committal proceeding; or[14]
[14]When Subdivision (1) of the Division 2 of Part 4 of the Sentencing Act 1991 was inserted, s85F included ss(2)(c) which read: “Any written statements or admissions used as evidence in the committal proceeding;”. Subsection 85F(2)(c) was repealed by Act No. 68/2019 s97. When the matter of Kaplanv Lee-Archer (2007) 15 VR 405 was decided, ss(2)(c) was in the Act. I doubt that anything turns on the repeal of the paragraph.
(d) any victim impact statement made to the court for the purpose of assisting it in determining sentence, including any medical report attached to it.
85G Evidence
(1) On an application for a compensation order—
(a) the victim or the offender may give evidence or may call another person to give evidence in relation to the application; and
(b) the victim, offender or other person who gives evidence may be cross-examined and re-examined; and
(c) a finding of any fact made by a court in a proceeding for the offence is evidence and, in the absence of evidence to the contrary, proof of that fact; and
(d) the finding may be proved by production of a document under the seal of the court from which the finding appears; and
(e) the court may have regard to any evidence or statement referred to in section 85F(1) and, with the consent of the parties to the application, to any available documents or admissions referred to in that section.
(2) A court must not make a compensation order without giving the offender a reasonable opportunity to be heard on the application for the order.
85H Court may take financial circumstances of offender into account
(1) If a court decides to make a compensation order, it may, in determining the amount and method of payment of the compensation, take into account, as far as practicable, the financial circumstances of the offender and the nature of the burden that its payment will impose.
(2) A court is not prevented from making a compensation order only because it has been unable to find out the financial circumstances of the offender.
85I Court must reduce compensation by amount of any award under Victims of Crime Assistance Act 1996
If a court decides to make a compensation order, it must reduce the amount of the compensation by the amount of any award made to the victim under the Victims of Crime Assistance Act 1996 for the expense or other matter for which compensation is being sought under this Subdivision.
85J Court to give reasons for its decision
(1) On deciding to grant or refuse an application for a compensation order or to refuse to hear and determine such an application, the court must—
(a) state in writing the reasons for its decision; and
(b) cause those reasons to be entered in the records of the court.
(2) The failure of a court to comply with subsection (1) does not invalidate the decision made by it on the application.
85K Costs of proceeding
Despite any rule of law or practice to the contrary or any provision to the contrary made by or under any other Act, each party to a proceeding under this Subdivision must bear their own costs of the proceeding unless the court otherwise determines.
85L Right to bring civil proceedings unaffected
Nothing in this Subdivision takes away from, or affects, the right of any person to recover damages for any expense or other matter so far as it is not satisfied by payment or recovery of compensation under this Subdivision.
85M Enforcement of order
Subject to section 30 or section 36ZA of the Confiscation Act 1997, a compensation order, including costs ordered to be paid by the offender on the proceeding for that order, must be taken to be a judgment debt due by the offender to the person in whose favour the order is made and payment of any amount remaining unpaid under the order may be enforced in the court by which it was made.”
35 Part 4, Division 2, Subdivision (1), was inserted into the Sentencing Act 1991 by way of s21 of the Victims of Crime Assistance (Amendment) Act 2000 and came into operation on 1 January 2001. I refer to the Court of Appeal decision of Kaplan v Lee-Archer,[15] wherein Buchanan JA stated in relation to this addition to the Sentencing Act:
“Those provisions are designed to provide an expeditious, cheap means of determining claims for compensation. As the Attorney-General said, in his second reading speech:
‘Where an offender has been found guilty of a crime, important facts about the offender’s actions and liability are already before the Court. This provides the court with an opportunity to assess the victim’s compensation claim soon after the offender has been sentenced. This procedural economy provides victims with a speedy and low cost option for seeking recompense from offenders without having to resort to civil proceedings.’
At the same time the Act provides more than an alternative procedure to civil proceedings. The range of injuries for which compensation may be obtained is wider than the range generally recognized by the civil law.”[16]
[15](2007) 15 VR 405
[16](Op cit) at paragraphs [5]-[6]
36 I also refer to the decision of Bell J in RK v Mirik and Mirik wherein he states at paragraph [6]:[17]
“Thus, in Victoria, the modern legislation – which is in Part 4 of the Sentencing Act - is more beneficial to victims, in procedure and content, than its historical antecedents. The scheme in Part 4 is part of a set of enactments that assists and supports victims of crime. It reflects developments in legislative policy and social attitudes about how the courts should take greater account of the interests of the victims of crime. Doing so is now embedded more deeply in law and public administration than it once was.”
[17][2009] VSC 14
37 Bell J also noted that the amendments gave further effect to the object specified in s1(i) of the Sentencing Act 1991, namely, “to ensure that victims of crime received adequate compensation and restitution”.
38 Section 85A of the Sentencing Act 1991, contains various definitions, including:
– “compensation order” means an order under section 85B(1);
– “‘injury’ means—
(a) actual physical bodily harm; or
(b)mental illness or disorder or an exacerbation of a mental illness or disorder, whether or not flowing from nervous shock; or
(c)pregnancy; or
(d) grief, distress or trauma or other significant adverse effect; or
(e)any combination of matters referred to in paragraphs (a), (b), (c) and (d) arising from an offence—
but does not include injury arising from loss of or damage to property;”
– “medical expenses” includes dental, optometry, physiotherapy, psychology treatment, hospital and ambulance expenses.
39 Section 85B(1) of the Sentencing Act 1991 provides that a court, either finding a person guilty of an offence or convicting a person of an offence, may, on the application of a person who has “suffered any injury as a direct result of the offence”, order the offender to pay compensation.
40 The nature of such compensation is set out in s85B(2) of the Sentencing Act 1991 and includes amounts for pain and suffering, some or all of the medical expenses incurred or reasonably likely to be incurred by the victim for reasonable counselling, some or all of any medical expenses actually or reasonably likely to be incurred by the victim, and some or all of any other expenses actually and reasonably likely to be incurred by the victims, not including any expense arising from a loss or damage to property.
41 Each of these types of compensation, that is to say, the compensation referred to in ss85B(2)(a), (b), (c) and (d) make up the “compensation order”.
42 The types of compensation referred to in s85B(2) of the Sentencing Act 1991 are required to be as a “direct result of the offence”. In Kaplan,[18] Buchanan J stated:
“…in my opinion, the addition of the requirement that the result be ‘direct’ does not mean that there can be no step between the cause and the consequence, or that the consequence must be solely due to the cause. As Lord Sumner said in Weld-Blundell v Stephens:[19]
‘Direct cause excludes what is indirect, conveys the essential distinction, which causa causans and causa sine qua non cumbrously indicate, and is consistent with the possibility of a concurrence of more direct causes than one, operating at the same time and leading to a common result.’
Nor do I think that ‘direct’ is a synonym for ‘immediate’ or ‘proximate’ or An injury may be directly caused by a crime notwithstanding that the injury develops gradually or becomes manifest only after a lapse of time or, as will often be the case with psychological or mental injury, is revealed only by expert diagnosis of multiple symptoms. In a scheme of compensation which was designed to be a cheap and expeditious remedy tacked on to a criminal trial, in my view the introduction of the adjective ‘direct’ is intended to exclude those results which are but tenuously related to crimes in that their contribution is a minor factor in the production of the injury … .”[20]
(Footnotes omitted.)
[18](Op cit)
[19][1920] A.C. 956 at 983
[20]Kaplan v Lee-Archer (op cit) at paragraphs [24]-[25]
43 In the same matter, Nettle JA (as he was then) stated:
“I have therefore come to the view that when the draftsman of s 85B chose the expression ‘as a direct result of the offence’ he or she had in mind the sense in which the expression was used in relation to the injury in Fagan, which is to say an injury that is judged as a matter of fact, according to commonsense and experience, to have been caused by the offence.”
(Footnote omitted.)
44 Orders for compensation are not limited to injuries that would be compensable at common law. The Sentencing Act 1991’s definition of “injury” is broad and includes grief and distress. An application for compensation for pain and suffering is not subject to the restrictions of Part VBA of the Wrongs Act 1958 as being a claim for “recovery of damages” for non-economic loss.[21]
[21]See Moresco v Budimir [2015] VSC 51 at paragraphs [21]-[25]
45 In Bentley v Furlan,[22] Ashley J distinguished between the rationales of common law damages and no-fault compensation for a person on the one hand and awards of criminal injury compensation on the other, when he said:
[22][1999] 3 VR 63
“The purpose of common law damages is to provide fair and reasonable compensation for the hurt which has been suffered. The purpose of no-fault compensation is, without need for proof of negligence, to provide benefits for economic and non-economic hurt to the extent that their payment can be responsibly funded. In neither case is an award discretionary.”
The rationale of criminal injuries compensation has been explained in cases where it has been payable out of the public purse. It has been said to be socially and morally desirable to compensate the victims of crimes of violence. Compensation is seen as ‘a tangible expression of the State's sympathy and concern for those who, through no fault of their own, suffer unjustifiable invasions of their personal integrity’.”[23]
Ashley J went on to say that the rationale for compensation legislation had not changed because the burden of the payment under the then s86(1) of the Sentencing Act 1991 fell on the offender rather than the State.
[23](Op cit) at paragraphs 21-22
46 It is to be noted that pursuant to s85L of the Sentencing Act 1991, the right of any person to recover common law damages for any expense or other matters insofar that they are not satisfied by payment of recovery of a “compensation order”, is unaffected.
47 Section 85H of the Sentencing Act 1991, provides that a court may, in determining the amount and method of payment of any compensation, can take into account “as far as practicable”, the financial circumstances of the offender and the nature of burden that payment will impose. However, a court is not prevented from making a “compensation order” only because it is unable to find out the financial circumstances of the offence. Such provision has been generally interpreted and construed to mean that the legislature was concerned to ensure that the rehabilitation of an offender should not be adversely affected by an award of compensation.[24]
[24]See Dura Constructions (Aust) Pty Ltd v Dovigi [2004] VSC 252 at paragraph [50]; RK v Mirik and Mirik (op cit) at page 652; Brooks v Meade [2017] VSC 172 at paragraphs [23]-[26]
48 Section 85F of the Sentencing Act 1991 directs that a court “must not refuse to hear and determine an application for a compensation order” unless, in its opinion, the relevant facts do not sufficiently appear from evidence given at the hearing of the charge, any statement of the material facts relevant to the charge given to a court in a proceeding for the offence by the prosecution and not disputed on behalf of the accused and any available documents. Subsection 2 of s85F defines “the available documents” to mean any written statements or admissions which were made for use and would have been admissible as evidence on the hearing of the charge, depositions in the committal hearing, and/or any Victim Impact Statements made to the court for the purposes of assisting in determining sentence, including any medical reports attached to it.
49 Section 85I of the Sentencing Act 1991 directs that a court in making a “compensation order” must reduce the amount of the compensation by the amount of any award made to the victim under the Victims of Crime Assistance Act 1996 for the expense or other matters for which compensation is being sought.
50 Section 85G of the Sentencing Act 1991 makes clear that on an application for a “compensation order”, the victim and/or the offender may give evidence and be cross-examined and re-examined, and may call another person to give evidence in relation to the application.
51 In Kaplan,[25] Buchanan J referred to possible circumstances where an application pursuant to s85B of the Sentencing Act 1991, may well be so complex that it is unsuitable for resolution by the summary procedure envisaged by s85B. In particular, he stated:
“The presence of possible causes of an injury other than the commission of the crime by the offender is capable of rendering an application so complex that it is unsuitable for resolution by the summary procedure envisaged by s.85B. On the other hand, the evidence may disclose that the respective roles of the crime and the rival causes may be readily distinguished and the question of causation satisfactorily determined in a summary fashion without the assistance of mechanisms such as pleadings, discovery, and interrogatories, which are available in civil proceedings.
The question is ultimately one involving the exercise of a discretion. The sentencing judge in the present case concluded that it was possible to disentangle competing causes of the post-traumatic stress disorder and determine the role played by the commission of the thefts. I do not consider that it has been demonstrated that his Honour’s discretion miscarried. It has not been shown that his Honour acted upon a wrong principle, took into account irrelevant matters, mistook the facts or failed to take into account some material consideration. Nor has it been shown that his decision was unreasonable or plainly unjust.[26]
Where injury is the result of the commission of a crime and other wrongdoing, civil proceedings have the advantage over an application made under s.85B of the Act that in the former the provisions of Part IV of the Wrongs Act 1958 apply and enable a defendant to recover contribution from other wrongdoers. In the present case, however, it was not suggested at first instance that there were other wrongdoers whose presence before the Court was necessary or desirable.”[27]
[25]Bentley v Furlan (op cit)
[26]Reference was made to the well-known decision House v The King (1936) 56 CLR 499 at 505 per Dixon, Evatt and McTiernan JJ.
[27]Kaplan v Lee-Archer (op cit) at paragraphs [31]-[33]
52 Later in that decision, Nettle JA (as he was then) stated:
“Thirdly, since claims under s 85B are in effect limited to compensation for personal injuries suffered as a result of an offence,26 and since Part IVAA of the Wrongs Act 1958 applies only to claims for economic loss and damage to property or under Part 9 of the Fair Trading Act 1999 (scil. consumer and trader disputes and small claims), I consider that Part IVAA of the Wrongs Act 1958 does not apply to a claim for compensation under s 85B. In my view, if a judge is persuaded that the victim has suffered injury as a result of an offence, the judge should calculate the amount of compensation without reduction by way apportionment of the kind for which Part IVAA provides.
Like Buchanan, J.A., however, I consider that Part IV of the Wrongs Act does apply – in the sense that, if an award of compensation is made against an offender pursuant to s 85B of the Sentencing Act, the offender is entitled to seek compensation from any person jointly liable for the same damage. But I think that in practice it is unlikely that a claim for contribution will be dealt with at the same time as the victim’s claim for compensation. The method of s 85B is to provide a quick low cost mechanism for the victim to recover compensation. Accordingly, if in any matter it appears to a judge that there are substantial questions of contribution to be investigated, the judge is likely to conclude that the matter is inappropriate to be dealt with under the section.”[28]
[28](Op cit) at paragraphs [59]-60]
53 In Mirik,[29] Bell J emphasised that the amendments to the Sentencing Act 1991 by way of the introduction of Part 4, Division 2, Subdivision 1, were of a beneficial nature to assist courts to make “compensation orders” in favour of victims of criminal activity. In this respect he states:
“To summarise, the new provisions under which the criminal courts can order civil compensation against offenders are part of a legislative network that assists and supports victims of crime. The provisions have a new purpose, which is to ensure victims receive adequate compensation and restitution. The procedures enabling victims to make applications have been enhanced. The provisions enabling the courts to hear and determine applications have also been enhanced. The position as regards the discretion of the court to refuse to hear and determine applications has been reversed. Now the court must not refuse to hear and determine applications unless specified conditions are met and it justifies its decision in writing.
I think it is necessary to take account of these important changes when applying the principle that the power to award criminal compensation is meant for straightforward cases. The principle cannot be applied with its former force. It has been weakened by the amendments the Parliament has made. The legislation in Victoria is now different to the legislation in the United Kingdom. The authorities on the application of the principle in the United Kingdom are now not as applicable in Victoria.”
Under the current legislation here, I take my responsibility to be to hear and determine an application for compensation if I can practicably do so, following the procedures and applying the tests that have been specified. The question whether the court is to exercise its discretion to refuse to hear and determine an application is dealt with specifically in s 85F(1). Having regard to decision of the Court of Appeal in Kaplan v Lee-Archer,[30] I don’t think I am at liberty to decide that s 85F(1) has subsumed the principle, but I think it probably has. At the least, once the court has decided not to refuse to proceed under s 85F(1), many fewer cases will be considered too complex for determination under the new provisions than under the former provisions. More cases will be now capable of being heard and determined by the criminal courts, if the victim elects to pursue the right of easy access to civil justice which the legislation provides.”[31]
[29]RK v Mirik and Mirik (op cit)
[30](2007) 15 VR 405, 412
[31]RK v Mirik and Mirik (op cit) at paragraphs [66]-[68]
54 I refer to the relatively recent decision of Brooks v Meade,[32] wherein Weinberg JA, in determining an application under s85B of the Sentencing Act 1991, referred to an earlier decision of Moresco v Budimir,[33] wherein T Forrest J stated:
[32][2017] VSC 172
[33][2015] VSC 51
“Orders for compensation are not limited to injuries that would be compensable at common law. The Act’s definition of ‘injury’ is broad and includes grief and distress. An application for compensation for pain and suffering is not subject to the restrictions in Part VBA of the Wrongs Act 1958 as being a claim for ‘recovery of damages’ for non-economic loss. I will return to s 85B(2), and the issue of quantum, shortly.
The expression ‘direct result of’, which means ‘an injury that is judged as a matter of fact, according to common-sense and experience, to have been caused by the offence.’
I have said that convenience and expediency are purposes of compensation order applications. A positive expression of those purposes is the evidentiary provision of the Act, s 85G. Subsection 85GI, in particular, provides that on an application for a compensation order a finding of fact made by a court in a proceeding for the offence is evidence and, in the absence of evidence to the contrary, proof of that fact. A finding may also be proved by production of a document under the seal of the court from which the finding appears.
Other facts may be proved by more conventional methods. A victim or the offender may give evidence, or call another person to give evidence, and may be cross-examined and re-examined. Although the application is ancillary to the criminal proceeding, it is itself a civil proceeding, to which the civil standard of proof applies.
If there is an entitlement to compensation, the assessment of the quantum of that entitlement is undertaken by application of the common law principles of assessment of damages, subject to any necessary modification. The judge must intuitively synthesise all of the material circumstances of the case, including the seriousness of the offending, the relationship between the offence and the victim and the victim and the offender, the degree of injury suffered by the victim, the offender’s financial circumstances and the effect of an order on the offender’s prospects for rehabilitation.”[34]
(Emphasis added.)
[34]See Brooks v Meade (op cit) at paragraph [27]
55 I should also point out Weinberg JA, in Brooks, also commented that s85B is “plainly intended to facilitate a swift, and relatively low cost means of redress for the harm suffered by victims of crime.” In so doing, he notes it avoids the need to force victims to embark upon lengthy and complex civil litigation. However, because the process entailed is summary in nature, it is appropriate to take a somewhat “conservative view of the amounts that should be paid, given that detailed evidence in support of claims may not necessarily be available, and a broad brush approach may have to be adopted.”[35]
[35]See Brooks (op cit) at paragraph [27]
The claim for compensation by Ms Nora Marshall
56 Nora Marshall is a sixty-year-old (born 31 October 1958) woman and is the mother of the second applicant, James Zagaretos, who is now aged thirty-three years, having been born on 19 September 1985.
57 Nora Marshall had been previously married to Geoff in a relationship spanning six years, which produced their son, James (the second applicant). Nora Marshall knew Zagaretos through his relationship with her husband, and following her separation from her husband she initially continued the friendship with Zagaretos, and eventually they became partners. At the time of Zagaretos’ death on 30 November 2011, they had been together for approximately twenty-two years. On the death of Zagaretos, James took the name of his stepfather, and is now known as James Zagaretos.
58 Following the death of Zagaretos, Nora Marshall made a Dependant’s Claim for Compensation pursuant to the provisions of the ACA, dated 15 December 2011.[36] Such claim for compensation was accepted and Nora Marshall was paid the following statutory sums:
(a) a lump sum of $527,610 pursuant to s92A of the ACA;
(b) the sum of $15,481 being interest pursuant to s92A(12)(b) of the ACA;
(c)the sum of $9,300 being the reasonable cost of burial cremation pursuant to the provisions of the ACA;
(d)WorkSafe having determined that the pre-injury average weekly earnings of Zagaretos was $1,362 gross, the claimant would be paid the sum of $1,362 gross for the first fifty-two weeks and $955 thereafter, by way of a pension, pursuant to s92B of the ACA.[37]
[36]See Dependant’s Claim for Compensation completed by Nora Marshall at Tab 15 of the book of documents
[37]See the document “Terms of Settlement” at Tab 17 of the book of documents
59 On or about 28 November 2017, Nora Marshall, who had attained an impairment assessment of “significant injury” following a medical appointment from a Medical Panel appointed under Part VBA of the Wrongs Act 1958,[38] caused a Writ to be issued out of the Supreme Court of Victoria, claiming damages for lost expectation of dependency and for a “nervous shock” injury.
[38]See the Certificate of Determination at Tab 5 of the book of documents
60 The Writ named as defendants, the two respondents, and Wayne Pollard, U-Sweep and Statewide.
61 By an order made on 7 September 2018, provision was made for, among other things, discovery and interrogatories and that the proceeding be fit for hearing not before 21 October 2019.[39]
[39]See General form of Order at Tab 26 of the book of documents
62 Downer and VicRoads submit that Nora Marshall has no entitlement to a “compensation order” under s85B of the Sentencing Act 1991 as a result of the operation of s138B of the ACA.
63 I refer to s138B of the ACA which reads:
“(1) A court must not exercise the powers conferred by Subdivision (1) of Division 2 of Part 4 of the Sentencing Act 1991 to make a compensation order within the meaning of that Subdivision if the compensation would be for a matter arising from discriminatory conduct that constitutes an offence against section 242AA or for a matter—
(a) arising from an injury or death in respect of which it appears to the court that the person has an entitlement to any compensation under this Act; and
(b) arising from an event that constitutes an offence only against the Dangerous Goods Act 1985, the Occupational Health and Safety Act 2004 or the Equipment (Public Safety) Act 1994 or any regulations made under any of those Acts.
(2) Notwithstanding anything to the contrary in Subdivision (1) of Division 2 of Part 4 of the Sentencing Act 1991, this section applies to and in respect of any offence referred to in subsection (1) committed on or after the commencement of section 26 of the Accident Compensation (Common Law and Benefits) Act 2000.
(3)For the purposes of subsection (1)(a), a person is not to be regarded as having an entitlement to any compensation under this Act if the entitlement would only arise under any or all of sections 99(1)(aa), 99(1)(b) and 92A (only by virtue of subsection (10)).”
64 Section 138B of the ACA was inserted by s26 of the Accident Compensation (Common Law and Benefits) Act 2000, which was the same Act which reinstated access to common law damages for seriously injured workers to sue employers and recover damages.
65 When s138B was initially inserted in the ACA, it was not in precisely the same terms as the present section. Section 135B(1) of the ACA read:
“(1)a court must not exercise the powers conferred by s86 of the Sentencing Act 1991 to order an offender to pay compensation for pain and suffering if the compensation will be for pain and suffering to a person:
(a)arising from an injury or death in respect of which it appears to the court that the person has an entitlement to any compensation under this Act; and
(b)arising from an event that constitutes an offence only against the Dangerous Goods Act 1985, the Occupational Health and Safety Act 2004 or the Equipment (Public Safety) Act 1994 or any regulations made under any of those Acts.”
66 At the time of the insertion of s138B of the ACA, there had yet to be an amendment to the Sentencing Act 1991 inserting Subdivision (1) of Division 2 of Part 4 of the Sentencing Act 1991.
67 As I have already noted, Subdivision 1 of Division 2 of Part 4 of the Sentencing Act 1991 was inserted by s21 of the Victims of Crime Assistance (Amendment) Act 2000 and came into operation on 1 January 2001. Section 25(3)(a)(b) of the same Act also amended s135B, consistent with the amendments made to the Sentencing Act 1991.
68 Furthermore, s25 of Act No. 9 of 2010 further amended s138B(1) by adding the words “if the compensation would be for a matter arising from discriminatory conduct that constitutes an offence against section 242AA”. Later, s638 of the Workplace Injury Rehabilitation and Compensation Act 2013 amended s138B(3) of the ACA by deleting the words “any or all of sections 99(1)(aa), 99(1)(b) and 92A” and substituting “section 99(1)(b), 99(1)(c) or 92A”. There are also other minor amendments deleting the words “Occupational Health and Safety Act 1985” in s138B of the ACA and inserting the current legislation: “Occupational Health and Safety Act 2004”.
69 Counsel for VicRoads referred to the Second Reading Speech by the Minister for WorkCover on 13 April 2000, introducing the Accident Compensation (Common Law and Benefits) Bill and, in particular, referred to page 1009 of Hansard, wherein it is stated:
“The opportunity is also being taken to amend what is seen as an anomalous consequence of the former government’s changes to the Sentencing Act in 1996.
The Accident Compensation Act 1985 and the Transport Accident Act 1986 are both intended to provide comprehensive schemes for compensating individuals who have suffered either workplace injuries and diseases or injuries arising out of transport accidents. Within both schemes, the benefits are structured to address the main adverse impacts of such injuries and diseases.
An additional form of compensation currently exists under s86 of the Sentencing Act 1991. A person who suffers loss of or damage to property or pain and suffering as a result of an offence, may apply to the court for an order that the offender pays compensation. This provision was extended to pain and suffering by the former government as part of that government’s changes to crimes compensation in 1996.
In order for these compensation schemes to operate effectively, the Government believes that it is appropriate that compensation for such injuries is payable under one piece of legislation. Accordingly, the Bill amends the Sentencing Act 1991 to exclude a person from entitlement to compensation for pain and suffering under s86 where that person has or may have an entitlement to compensation under the Accident Compensation Act 1985 or the Transport Accident Act 1986 as the case may be and where the driver or employer is guilty of an offence under the Road Safety Act 1986 and the sentence of a driver and the Dangerous Goods Act 1985, the Occupational Health and Safety Act 1985 or the Equipment (Public Safety) Act 1994 in the case of an employer. This amendment will apply from today, the date of the Second Reading Speech. In all other situations compensation for pain and suffering will still be available under the Sentencing Act.”[40]
[40]See Second Reading Speech at Tab 38 of the book of documents
70 Counsel for VicRoads also referred to a later part of the Second Reading Speech by the relevant Minister (at page 1011 of Hansard), where he further stated:
“Clause 26 inserts new section 138B into the Accident Compensation Act 1985.
This new section operates to prevent a court (including the Supreme Court) from making an order for the payment of compensation for pain and suffering under s86 of the Sentencing Act 1991 if the pain and suffering arises from an injury or death in respect of which the person concerned has or may have an entitlement to compensation under the Accident Compensation Act 1985 and the relevant offence is against the Dangerous Goods Act 1985, the Occupational Health and Safety Act 1985, the Equipment (Public Safety) Act 1994 or any regulations made under any of these Acts.
The reason for this limitation of the jurisdiction of the Supreme Court is to give effect to government policy that, in the cases referred to, compensation for pain and suffering under the Sentencing Act should not be available.”[41]
[41]See Second Reading Speech at Tab 38 of the book of documents
71 It should be noted that in the first excerpt from Hansard, the relevant Minister refers to amendments to the Sentencing Act 1991, which I believe should be read as amendments to the ACA rather than the Sentencing Act 1991. Furthermore, in both excerpts, there is only reference to compensation for pain and suffering – of course, this reflected the then situation of the then s86 of the Sentencing Act 1991 (the predecessor of the present legislation) which only permitted pain and suffering compensation.
72 To employ a term used by counsel during the proceeding, it is clear enough that s138B of the ACA “carves out” certain circumstances where otherwise Subdivision (1) of Division 2 of Part 4 of the Sentencing Act 1991 would apply. The critical words in s138B are ss(1) which, relevantly, read:
“A court must not exercise the powers conferred by Subdivision (1) of Division 2 of Part 4 of the Sentencing Act1991 to make a compensation order within the meaning of that Subdivision if the compensation would be … for a matter –
(a)arising from an injury or death in respect of which it appears to the court that the person has an entitlement to any compensation under this Act; and
(b)arising from an event that constitutes an offence only against the Dangerous Goods Act 1985, the Occupational Health and Safety Act 2004 or the Equipment (Public Safety) Act 1994 or any regulations made under any of those Acts.”
73 During the course of argument, much time was spent on how s138B, and in particular, ss(1) was to be construed. All parties accepted that s138B of the ACA did “carve out” circumstances where s86B of the Sentencing Act would otherwise apply and that, for s138B of the ACA to have effect, there must be satisfaction of subparagraphs (a) and (b) of section 138B(1) of the ACA.
74 I refer to the Court of Appeal decision of Colonial Range Pty Ltd v CES-Queen (Vic) Pty Ltd and Delta Pty Ltd,[42] wherein the Court of Appeal (consisting of Warren CJ, Whelan JA and Riordan AJA) conveniently set out at paragraphs [47]-[55] what is referred to as “Principles of statutory construction”. I set out the relevant passage.
[42][2016] VSCA 328
“47 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.[43]
[43]Reference was made to Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381
48To enable the relevant provision to be properly construed, it is therefore necessary to identify the legislative purpose of the Act as a whole and whether the relevant provision can be interpreted in a manner harmoniously with that purpose. This process requires consideration of:
(a) the text of the relevant provision itself;[44] and
[44]Reference was made to Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, 46–7; Northern Territory v Collins (2008) 235 CLR 619 at 642
(b)the whole of the instrument,[45] and the provisions with which the relevant provision interacts.[46] The context extends to the existing state of the law, the history of the legislative scheme and the mischief which the statute sought to remedy,[47] and ‘imports all legitimate means by which the legislative intent may be ascertained’[48].
[45]Reference was made to Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320
[46]Reference was made to Saeed v Minister for Immigration & Citizenship (2010) 241 CLR 252 at 265
[47]Reference was made to CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408
[48]Reference was made to DPP v Leys (2012) 44 VR 1 at page 32
49 When identifying the legislative purpose of the Act consideration may be given to extrinsic material,[49] but such extrinsic material should be looked at after ‘exhausting the application of the ordinary rules of statutory construction’[50] and it ‘cannot be relied on to displace the clear meaning of the text’.[51]
[49]Reference was made to the Interpretation of Legislation Act 1984 – s35(b)
[50]Reference was made again to Saeed v Minister for Immigration & Citizenship (op cit) at pages 265 which was quoted in quoted in Di Paolo v Salta Constructions Pty Ltd [2015] VSCA 230 at paragraph [36]
[51]Reference was again made to Northern Territory v Collins (op cit) at page 642; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 47; Defendant v GLG Australia Pty Ltd (2006) 228 CLR 529 at 538
50 Where the ordinary meaning of the text is consistent with the legislative purpose, the court will apply that as the legal meaning.
51If the text permits more than one possible construction, s 35(a) of the Interpretation of Legislation Act 1984 requires that a construction which would promote the purpose or object of an Act be preferred to one that would not.
52 A tension arises when the court considers that the ordinary meaning of the text is inconsistent with the legislative purpose. As the plurality in Project Blue Sky Inc v Australian Broadcasting Authority explained:
‘the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.’”[52]
[52]Reference was made to Project Blue Sky (op cit) at paragraph [78]
53 The circumstances which may justify a court departing from the ordinary meaning of a relevant provision include where:
(a) the literal meaning would conflict with other provisions of the statute;[53]
[53]See Project Blue Sky (op cit) at paragraph [70]
(b) the literal meaning is inconsistent with the purposes of the statute;[54]
[54]Reference was made to DPP v Leys (2012) 44 VR 1
(c) the literal meaning is incapable of practical application;[55] or
[55]Reference was made to DPP v Walters [2015] VSCA 383
(d) adoption of the literal meaning would lead to a result which is absurd, unreasonable or anomalous.[56]
[56]Reference was made to Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297
54 Recent statements of the High Court have emphasised the primacy of the text in the resolution of any perceived tension between the text and the legislative purpose of the Act.38 Such statements include the following:
(a) ‘The words of the statute, not non-statutory words seeking to explain them, have paramount significance’.[57]
[57]Reference was made to Nominal Defendant v GLG Australia Pty Ltd (2006) 228 CLR 529 at 538
(b) ‘This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text itself … The language which has actually been employed in the text of legislation is the surest guide to legislative intention’.[58]
[58]Reference was made to Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at paragraph [47]
(c) ‘A second and not unrelated danger that must be avoided in identifying a statute’s purpose is the making of some a priori assumption about its purpose. The purpose of legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of the relevant provisions’.[59]
[59]Reference was made to Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378, 390 at paragraph [26]
55 In the High Court decision in Taylor v Owners—Strata Plan No 156442 the majority stated that, in considering whether a provision could be interpreted as if it contained additional words, ‘the task remains the construction of the words the legislature has enacted. … any modified meaning must be consistent with the language in fact used by the legislature’. The majority said that whether such a construction is justified involves a judgment of matters of degree and explained:
‘That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision. It is answered against a construction that fills ‘gaps disclosed in legislation’ or makes an insertion which is ‘too big, or too much at variance with the language in fact used by the legislature’.”
(Footnote omitted.)
75 After a consideration of the competing submissions made by those for the applicants and those for the respondents in respect to the statutory construction of s138B and applying the relevant principles of statutory construction, I largely accept the construction submitted by those acting for the respondents.
76 I note the following:
(a)The words “a matter” appear twice in s138B(1) of the ACA – initially, in the phrase “a matter arising from discriminatory conduct”, and later, when the words “a matter” are used in circumstances where the “matter” is required to satisfy both paragraphs (a) and (b).
The word “matter” is also found in s85B of the Sentencing Act 1991. Section 85B(1) permits an award for compensation “for any matter referred to in paragraphs (a)-(d) of ss(2)” – that is to say, the types of “injury” set out in the definition of “injury” contained in s85A of the Sentencing Act 1991. [Emphasis added.]
I accept the submission of the respondents that the word “matter” in s138B of the ACA should be read with a corresponding meaning.
(b)The opening words of s138B(1) of the ACA directs a court not to exercise the powers conferred by Sub-division (1) of Division 2 of Part 4 of the Sentencing Act 1991 (which for convenience I shall refer to as s85B of the Sentencing Act 1991) in two circumstances:
(i)that the compensation will be for a matter arising from discriminatory conduct that constitutes an offence against s242AA; and
(ii)where the compensation will be for a matter that satisfies both the requirements of paragraphs (a) and (b) of s138B(1) of the ACA. [Emphasis added.]
(c)The words “arising from” appear three times in s138B(1) and in each instance immediately after the word “matter” – the first occasion is when the words “arising from” are used in the phrase “if the compensation will be for a matter arising from discriminatory conduct …” and the second occasion relevantly occurs in s138B(1)(a) which reads “arising from an injury or death in respect of which it appears to the court that the person has an entitlement to any compensation under this Act … .”
The words are also used in s138B(1)(b) of the ACA which reads “arising from an event that constitutes an offence only against the Dangerous Goods Act 1985, the Occupational Health and Safety Act 2004 or the Equipment (Public Safety) Act 1994 or any regulations made under any of those Acts”.
As Senior Counsel for Downer notes, workers’ compensation legislation for many years defined compensable injury to arise out of or in the course of employment (with varying modifications). The words “arising out of” have been construed to point to the origin or cause of the injury and look to a causal relationship but not necessarily a direct causal relationship with the employment. Reference is made to the well-known decision of Fitzgerald v W G Clarke & Son [1908] 2 KB 796 at 799 where Buckley LJ stated:
“The words ‘out of’ point, I think, to the origin or cause of the accident; the words 'in the course of' to the time, place, and circumstances under which the accident takes place. The former words are descriptive of the character or quality of the accident. The latter words relate to the circumstances under which an accident of that character or quality takes place”[60]
[60]See also Kavanagh v Commonwealth (1960) 103 CLR 547; Hatzimanolis v ANI Corporation Limited (1992) 173 CLR 473
In particular, I refer to Zlateska v Consolidated Cleaning Services Pty Ltd [2006] VSCA 141, wherein the Court of Appeal held that the requirement that injury be injury “arising out of the employment” will be satisfied if the employment is shown to have been a cause of the injury. It is not necessary to show that the employment was the sole or dominant cause of the injury. Again, as Senior Counsel for Downer notes, the “common sense” causation test is applied.[61]
[61]See March v EMH Stramare Pty Ltd (1991) 171 CLR 506; Migge v Wormald Bros Industries Ltd [1972] 2 NSWLR 29 at 44
(d)Section 138B(1)(a) of the ACA refers to a matter arising from “an injury or death in which it appears to the court that the person has an entitlement to any compensation under this Act”. [Emphasis added.]
The use of the word “death” in paragraph (a) is strongly suggestive that the claimant for compensation is not necessarily a “worker” within the meaning of the ACA, but also includes dependants of workers. Of course, it must be borne in mind that the “person” referred to in paragraph (a) is clearly a live person who prima facie seeks compensation under s85B of the Sentencing Act. Furthermore, it is to be noted:
(i)The reference to “any” compensation under this Act indicates that prima facie such compensation would cover all types of compensation under the provisions of the ACA, including lump sum claims for dependency by dependants of a deceased worker. [Emphasis added.]
There is no attempt in the legislation to limit the type of compensation under the ACA.
(ii)It is perhaps even more striking when one considers s138B(3) of the ACA, which states that for the purposes of s138B(1)(a) of the Act, a person is not to be regarded as having an entitlement to compensation under this Act if the compensation “would only arise under or all of s99(1)(a), s99(1)(b) and s92A (only by virtue of ss(10))”. In particular, s92A(10) states:
“If the worker, being under the age of 21 years at the time of the injury, leaves no dependent partner, dependent child or partially dependent partner but, immediately before the injury, was contributing to the maintenance of the home of the members of the worker's family, the members of the worker’s family are deemed to be dependants of the worker partly dependent on the worker’s earnings.”
I consider that properly construed, the words “entitlement to any compensation under this Act” as used in paragraph (a) in s138B(1) of the ACA means all compensation under the provisions of the ACA, save for that referred to and set out in s138B(3) of the ACA. In particular, the legislature, by providing that “dependants” through the operation of s92A(10) of the ACA are not to be regarded as having an entitlement to compensation within the meaning of s138B(1)(a) of the ACA makes abundantly clear, in my view, that other dependants – such as the claimant Nora Marshall – is a person to whom s138B(1)(a) applies.
77 I consider that the types of compensation claimed by Nora Marshall pursuant to s85B of the Sentencing Act are “matters” arising from the death of Zagaretos. Furthermore, self-evidently, that claimant had an entitlement to lump sum compensation arising from the death of her de facto partner, Zagaratos.
78 As I have already recorded, all parties agree that paragraph (b) of s138B(1), must be satisfied in order for s138B to have effect. Paragraph (b) requires:
“a matter … arising from an event that constitutes an offence only against the Dangerous Goods Act 1985, the Occupational Health and Safety Act 2004 the Equipment (Public Safety) Act 1994 or any regulations made under any of those Acts”.
79 I note the following:
(a)As I have already recorded, VicRoads pleaded guilty to one charge under the OHSA 2004, to wit, failing to provide and maintain safe plant or systems that was contrary to s21(1) and s21(2)(a) of the OHSA 2004. In part, the offence pleaded that it was reasonably practicable for VicRoads to have:
(i)ensured that a risk assessment was undertaken or arranged by Downer EDI as part of the traffic management plan approval process, identified the risk of collision between mobile plant and pedestrian workers who were moving bollards to ensure compliance with the traffic management plan set up, and identified measures to reduce or eliminate that risk;
(ii)ensured that the representatives for Roads Corporation trading as VicRoads … had the capacity, in accordance with its supervisory authority, to shut down works on the site by immediate communication by two-way radio or otherwise with representatives with Downer … when there was an imminent danger to health or safety of the employees on the site.
(b)As I have already recorded, Downer was charged with three offences and was ultimately found guilty by jury verdict in relation to each charge:
(i)Charge 1 ― that Downer on 30 November 2011, being an employer, failed so far as what is reasonably practicable to provide and maintain for its (sic) employees a working environment that was safe and without risk to health in that it failed to provide or maintain systems of work that were, so far as reasonably practicable, safe or without risk to health …
The pleadings in the charge contain particulars that Downer failed to require that ―
· bollards not be moved whilst machinery was working in close proximity to those bollards
· the sweeper vehicle reverse on site only if turning and moving in a forward direction was not practicable
· before reversing, the driver of the sweeper vehicle should either alight from the vehicle and check the way was clear, or use a spotter
· the sweeper should not reverse other than for a short distance or in an exclusion zone unless, before reversing, the driver either alights and checks and way is clear or uses the spotter
· the driver of the sweeper vehicle communicates through the spotter or by radio with pedestrian workers in the vicinity before reversing.
(ii)Charge 2 ― that Downer on 30 November 2011, being an employer, failed so far as reasonably practicable to provide and maintain for its employees a working environment that was safe and without risks to health in that it failed to provide such information, instruction, training or supervision to employees of the employer as is necessary to enable those person to perform their work in a way that is safe and without risk to health.
The pleading of the offence involved the particulars alleging that Downer failed to provide such information and instruction as was necessary to enable its employees to perform their work in a way that was safe and without risk to their health because ―
· Downer induction did not address the dangers posed by the sweeper vehicle reversing on a busy site and risk of injury to pedestrians and to occupants of other vehicles
· there was no Safe Work Method Statement or similar document setting out safe procedures for moving or setting up bollards and addressing the dangers posed by the movement of the sweeper on the site to persons on foot
(iii)Charge 3 ― that Downer on 30 November 2011, being an employer, failed so far as was reasonably practicable to ensure persons other than its employees were not exposed to risk to their health and safety arising from the conduct of its undertaking.
The pleading of the charge involved the particulars that Downer―
· failed to supervise the operation of the street sweeper and the movements of employees on foot in the vicinity of the sweeper vehicle so as to prevent exposure of such employees to the risk of being hit by the sweeper vehicle.
It was reasonably practicable to have at the Canterbury Road work site a supervisor who was required and able to monitor, and control, at all times the safe movement of vehicles performing road works within the worksite, including the sweeper driven by Wayne Pollard.
These charges involving the various particulars were the charges where, in respect of VicRoads, there was a plea of guilty to one charge and, in respect of Downer, there was a finding of guilt by a jury in respect to three charges. Such charges obviously exist only under the OHSA 2004.
80 I accept the submission made by the respondents that the “event” which constitutes an offence under the OHSA 2004, and from which Nora Marshall’s application arises, is, in the case of Downer, its failure as “an employer” to comply with the relevant sections of the OHSA 2004 and, in the case of VicRoads, its failure as “an employer” to comply with the relevant sections of the OHSA 2004. As I have recorded earlier in this Ruling, the offences created by the OHSA 2004 are essentially “risk-based, not outcome-based offences”. The tragic death of Zagaretos on 30 November 2011 was not an element of any of the offences with which the VicRoads and Downer were charged, but clearly was relevant in an evidentiary way informing as to the assessment of the existence of the risk and nature and seriousness of that risk.
81 As “the event” is neither the collision, nor the death of Zagaretos, nor the conduct of a person conducting works on a highway, a narrower focus is required. The proper focus is on the elements of the offence(s) on which the VicRoads and Downer were charged and convicted. Only such an “event” can be an “event that constitutes an offence only against the Occupational Health and Safety Act”, and that condition will be satisfied where no other offence was alleged and found proved.
82 I consider that the word “only” should be construed to mean in the circumstances of s138B(1)(b) of the ACA that the subject offences are, in fact, “only” under the OHSA 2004 rather than construing the word to mean that there is no other possible offence to be charged under any other Act or Regulation in relation to the subject circumstances. I do not consider it likely that the legislature contemplated that the application of s138B would involve an investigation as to whether the subject circumstances could give rise to an offence under an Act other than the OHSA 2004 – what counsel referred to during the course of argument as a “phantom offence”.
83 As stated in paragraph [48] of the Court of Appeal decision of Colonial Range Pty Ltd:[62]
“To enable the relevant provision to be properly construed, it is therefore necessary to identify the legislative purpose of the Act as a whole and whether the relevant provision can be interpreted in a manner harmoniously with that purpose … .”[63]
The purpose of the introduction of s135B of the ACA was to reflect that the ACA 1985, as amended, is intended to provide a comprehensive scheme of compensating individuals, including workers and dependants, resulting from workplace injury or death. In order for the accident compensation scheme to operate effectively, it was thought appropriate that compensation is payable under one piece of legislation. In this sense, workplace injury is governed by the ACA which also governs statutory benefits to both workers and dependants of workers, and potential common law damages to workers and their dependants and, in certain circumstances, by the Wrongs Act 1958.
[62](Op cit)
[63]I also refer to Victorian WorkCover Authority v BSA Ltd [2017] VSCA 276 at paragraphs [14]-[19]
84 I refer to the submissions put by those acting on the applicants in support of the proposition that s138B of the ACA has no application to the claim for compensation made by Nora Marshall pursuant to s85B of the Sentencing Act 1991.
85 As I have already recorded, it was common ground that the requirements of both subparagraphs (a) and (b) of s138B(1) must be satisfied for s138B of the ACA to have application. In the event that one paragraph and/or the other were not satisfied, then s138B of the ACA had no application.
86 In such circumstances, I initially refer to the written submissions on behalf of the applicants, dated 24 October 2018, wherein it is stated:
“…
4.Section 138B(1)(a) requires consideration of what is meant by (relevantly) –
‘… compensation … for a matter … arising from [a] death in respect of which it appears … the person has an entitlement to any compensation under the [the ACA] …’
The compensation sought is necessarily [reference is made to s85B(2) of the Sentencing Act 1991] confined to, in summary, compensation for pain and suffering, or consequential counselling, medical or other expenses incurred as a result of the offence. The compensation is not for the death of the deceased itself; it is compensation for the pain and suffering of the Applicants and, in particular (as far as the s.138B argument is concerned) the Applicant Nora Marshall.
5. The Respondents argue that s.138B should be given a purposive construction. Reference was made by VicRoads to the Second Reading Speech, which highlights the intention of the legislature to avoid a claimant having concurrent rights to compensation under the ACA (or, in other circumstances, the Transport Accident Act) and the Sentencing Act.
6.There is and can be no suggestion that Nora Marshall has any entitlement to compensation for pain and suffering under the ACA. She is not a ‘worker’ in any relevant sense and thus is entitled only to the limited benefits available to her as a dependant. Thus, the relevant purpose of s.138B is achieved by adopting a construction whereby Ms. Marshall is not precluded from obtaining a Sentencing Act compensation order. This is achieved by construing the provision so as to confine the prohibition to cases where the claimant has rights under the ACA in respect of the injury for which Sentencing Act compensation is sought.
7.The second requirement of s.138B prohibition is also not met. This requires the Court to consider the interpretation of the requirement that the compensation order sought be –
‘… compensation … for a matter … arising from an event that constitutes an offence only against … [the named Acts] … .’
8.As argued above, the compensation order in the present case is sought in respect of a ‘matter’, namely Ms. Marshall’s pain and suffering, arising from the death of the deceased. This is relevant to the construction of the term ‘event’.
9.The Respondents argue that the relevant ‘event’ was neither the incident giving rise to the death of the deceased, nor the death itself but rather was, eg, the failure to provide adequate training or to ensure that a risk assessment was undertaken. However, the ‘matter’ in respect of which a compensation order is sought is the pain and suffering occasioned by the deceased’s death and not by the conduct of the employer. Ms. Marshall does not suffer from the knowledge that the employer did not have an adequate risk assessment or failed to provide adequate training; she suffers because of her reaction to the death of her partner. Therefore, if the term ‘event’ is to be limited in accordance with the Respondents’ argument, s.138B(1)(b) simply does not apply. In other words, the ‘event’, as narrowly defined by the Respondents, did not give rise to the ‘matter’ (that is, psychological injury occasioned by the death) for which compensation is now sought. The prohibition therefore fails and this Court is at liberty to hear and determine this application in accordance with the Sentencing Act provisions.
10.If, conversely, the term ‘event’ is seen to refer to the larger circumstances (including the fatal accident), then it is open to the Court to consider whether these circumstances are consistent with an offence ‘only’ against the named Acts. Whether or not this may require a ‘phantom trial’ is not to the point – and is almost unnecessary where, as is here, the First Respondent has previously argued that the incident was governed, and only governed, by s.99A(2) of the Road Safety Act [reference was made to DPP v Downer EDI Works Pty Ltd (2015) 47 VR 688]. It is completely clear that the facts as described in the Particulars of the subject offences constituted a contravention of s.99A(2).
11.The use of the word ‘only’ is not discussed in the Second Reading Speech … but it must be given its full effect. Parliament could have drafted s.138B(1)(b) so as to provide that a Court could not make a Sentencing Act compensation order if the relevant offences pursuant to which the order was sought was an offence against one of the named Acts. The legislature did not do so but, rather, enacted the present provision which virtually compels a Court to consider whether the event (that is, the entire circumstances) was only an offence against the named Act.
12.The First respondent submitted that a construction which enabled an alternative offence to remove the exclusion would render the provision nugatory. This is not so in circumstances where offences against the Occupational Health and Safety Act2004 were committed within the confines of a workplace and do not involve the use of a vehicle. The Respondent gave the example of s.18 of the Crimes Act 1958 (recklessly cause injury) overlapping with ‘any offence’ under the OHS Act. This is not so as the employer entity, who would be the Defendant in an OHS Act prosecution, would not have the necessary mens rea to support a conviction under s.18 of the Crimes Act 1958. There are thus many instances where the exception, of the Applicants interpretation, would apply, and in turn, the exception does its work.
13.Accordingly, neither limb (a) nor limb (b) of s.138B(1) applies, and this Court is not prevented from hearing and determining the application of Nora Marshall.
… .” (Footnotes omitted.)
87 I also refer to the later document headed “Applicants’ Supplementary Submissions and Reply”, dated 3 November 2018, which are further submissions made by those acting for the applicants and “are intended to be read in conjunction with the submissions of 24 October 2018”. Such document reads:
“…
Operation of s138B Accident Compensation Act
2. Marshall was entitled and has received compensation under the Accident Compensation Act as the dependant partner of a worker. Those entitlements were paid by or on behalf of the deceased’s employer Statewide Traffic Control Pty Ltd.
3.Therefore Marshall is a person who ‘has an entitlement to any compensation under this Act’ as contemplated by subparagraph 138B(1)(a). Her entitlement to compensation was pursuant to s92A and was not compensation to which 138B(3) excludes, permitting a Sentencing Act application notwithstanding the receipt of compensation.
4.However, it is not simply the entitlement to compensation that precludes this Court from exercising its powers to make a compensation order (assuming that subparagraph (b) is also met). The provision links the making of the Sentencing Act compensation order to ‘the entitlement to any compensation’ by the words ‘if the compensation would be for a matter’.
5.Therefore the application of section 138B requires first, consideration of the nature of the compensation order to be made.
6.There are two ways that the phrase ‘if the compensation would be for a matter’ qualifies the subparagraphs that follow:
7.First, as outlined previously, compensation under no fault benefits for a dependant is not compensation for any injury as defined by s85A Sentencing Act ( see 4 – 6 earlier submissions).
8.Second, any compensation order made by this court is not an order against a person who has any liability to pay compensation under the Accident Compensation Act. Therefore, a compensation order against Downer EDI Works and Roads Corporation is not ‘for a matter’ that entitles Marshall to compensation. A compensation order against Statewide Traffic Control would, by contrast, be for a matter within the meaning of subparagraph (a).
9.The Second Reading speech described the exclusion of the Sentencing Act entitlement to compensation as operating where
‘that person has an entitlement to any compensation under the Accident Compensation Act 1985 or the Transport Accident Act 1986 – other than certain minor forms of compensation; and where the entitlement to compensation for pain and suffering arises solely because the driver or employer is guilty of an offence under the Road Safety Act in the case of a driver, and the … Occupational Health and Safety Act … in the case of an employer.’
10.It is submitted that the operation of s138B precludes an employer or a driver otherwise obliged by the relevant statutory scheme to make payments of compensation, from an additional liability. It does so only where any additional liability arises from the particular type of offence. The second reading speech, with its reference to an offence solely under particular legislation and to the driver or employer makes clear that the provision is to be read narrowly (emphasis added).
11.Neither defendant is an employer of the deceased or driver of the relevant vehicle within the meaning of either legislative scheme. They are prosecuted as an employer as defined in the Occupational Health and Safety Act 2004 with responsibility to independent contractors and the employees of independent contractors and with responsibility to other persons.
12.If, as submitted and consistent with the reasoning of the Court of Appeal in DPP v Downer EDI Works and Roads Corporation, the offence was capable of being charged pursuant to s99(2) Road Safety Act then subparagraph (b) is not met and it would be unnecessary to determine whether (a) was also met.”[64]
[64]I also refer generally to the transcript from pages 5 to 107, where counsel made various submissions in relation to the proper construction of s138(b) of the ACA.
88 I reject the submissions made by those acting for the applicants and do so largely for the reasons put forward for those acting for the respondents and, in particular, counsel for Downer. Some of these reasons have been stated already in this Ruling.
89 Initially, I refer to the submissions contained in the document prepared by those acting for the applicants, dated 24 October 2018.
90 Initially, counsel for the applicants refers to “limb (a)” of s138B of the ACA and submits that that paragraph should be construed so as to confine the prohibition to situations where the “claimant” has rights under the ACA in respect of injury for which the Sentencing Act compensation is sought.
91 As Senior Counsel for Downer submitted, it would appear that it has been falsely assumed that the words “in respect of which it appears the person has an entitlement to any compensation under this Act” governs the word “matter”. Indeed, I accept that a full reading of the section makes clear that those words do not govern the word “matter” and I have already set out my reasons for such conclusion earlier in this Ruling.
92 Furthermore, I also accept the submissions made on behalf of the respondents that the submissions made by the applicants do not take account of the word “any” in the phrase “in respect of which it appears the person has an entitlement to any compensation under this Act”. The plain reading of that phrase is that it has application in circumstances where a person seeking compensation pursuant to the Sentencing Act appears to the Court to have an entitlement to any compensation under the ACA Act in respect of an injury or death. Those acting for the applicants in construing s138B(1)(a) of the ACA to mean a direct entitlement of compensation under the ACA for the “matter” for which Sentencing Act compensation is sought, clearly ignores the words “any” and “in respect of” and is inconsistent with the words in fact used.
93 Also, I reject the submission on behalf of the applicants that s138B of the ACA should be construed by confining the prohibition to cases where the claimant has rights under the ACA in respect of the injury for which Sentencing Act compensation is sought. Such construction effectively limits the prohibition to “workers”. As submitted by counsel for Downer, the language of s138B does not support this construction, bearing in mind the section refers to a “person”, not a “worker”; the reference to “injury or death” in s138B(1)(a), and the qualifications enacted in s138B(3), which strongly indicate that the word “person” is intended to include a dependant of a worker.
94 In relation to “limb (b)” contained in s138B(1) of the ACA, Senior Counsel for the applicants submitted that the word “event” should be construed to refer to the larger circumstances (including the fatal accident) which would then make it open to the Court to consider whether these circumstances are consistent with an offence “only” against the named Acts. I have already referred to what I consider is the appropriate construction involving the concept of “event” when used in paragraph (b) contained in s138B(1) of the ACA, and will not repeat same.
95 I now refer to the written submissions on behalf of the applicants, dated 3 November 2018.
96 The first submission is similar in terms to what was submitted in the earlier written submissions. In this respect, it is submitted that Nora Marshall was entitled to, and received, compensation pursuant to the provisions of the ACA, as she was a dependant partner of a deceased worker, namely Zagaretos. It is put that her entitlement under the ACA was pursuant to s92A and “was not compensation to which s138B(3) excludes” and accordingly, it was open for her to obtain compensation pursuant to s85B of the Sentencing Act 1991. Senior Counsel for the applicants further submits that paragraph (a) links the making of what is referred to as the “Sentencing Act compensation order” to “the entitlement to any compensation” by the words “if the compensation would be for a matter”.
97 Senior Counsel for the applicants then submits that the phrase “if the compensation will be for a matter” qualifies the subparagraphs that follow by:
(a)Compensation under no-fault benefits for a dependant is not compensation for an injury as defined by s85A of the Sentencing Act 1991 (reference is made to the earlier submissions); and
(b)Any compensation order made by this Court is not an order against a person who has any liability to pay compensation under the ACA. Therefore, it is submitted, a compensation order against the respondents in this matter is not “for a matter” that entitles Marshall to compensation. A compensation order against Statewide would, by contrast, be for a matter within the meaning of subparagraph (a).
98 In particular, counsel for the applicants refer to and seemingly put great weight on what is referred to as the Second Reading Speech. In particular, insofar as the OHSA 2004 is concerned, it was submitted that s138B of the ACA would only have had any potential relevance where Statewide, the employer of Zagaretos, paid lump-sum compensation to his dependant partner (Nora Marshall), and also was found guilty of an offence pursuant to OHSA 2004.
99 In particular, counsel for the applicants refers to the reference in the so-called Second Reading Speech, which suggested that the exclusion of the Sentencing Act entitlement to compensation as operating where:
“… that person has an entitlement to any compensation under the Accident Compensation Act 1995 … – other than certain minor forms of compensation, and where the entitlement to compensation for pain and suffering arises solely because … the employer is guilty of an offence under the … Occupational Health and Safety Act … .”
100 Senior Counsel for the applicants expanded on these submissions when speaking to them on 8 April 2018.[65] In particular, I refer to T86 where Ms Forbes (then Senior Counsel for the applicants) stated at line 2:
“… So in summary; really what we say is that carve out in 138B relevantly should be construed narrowly, and construed narrowly as having application to persons who have received compensation of the nature broadly that they’ve received under the Act …
… paid by the offender that is the employer. But the exclusion only applies where the only offence of the offender that is the employer is an Occupational Health and Safety Offence.”
[65]See T54, L2-T86, L12
101 Now, I should also point out that the speech referred to by Senior Counsel for the applicants, which was said to be the Second Reading Speech, was in different terms to that referred to by counsel for VicRoads, parts of which are recorded in this Ruling. This issue was resolved after further delving into Hansard and, indeed, the Speech referred to by counsel for VicRoads was indeed the Second Reading Speech by the relevant Minister who had the responsibility for the portfolio involving WorkCover. The speech referred to by Senior Counsel for the applicants was the speech delivered by a member of the Legislative Assembly.
102 It was generally agreed that it is usually the Second Reading Speech of the Minister who, in this circumstance, was in the Lower House.
103 Again, I reject the submissions made by Senior Counsel for the applicants as to the proper construction of s138B and, in particular, subparagraphs (a) and (b) contained in ss(1). Again, it is to be highlighted the following matters:
(a)No consideration has been given to the words “the compensation if awarded under the Sentencing Act 1991 will be for a ‘matter’ arising from an injury or a death in respect of which compensation appears payable.” It is reasonably clear that it is not that the “carve out” is for a matter which is an “injury or a carve out where the compensation is for a matter which is death”. The words “arising from” have to be given some meaning. It is not a requirement that there be an equality between the “matter” for which the Sentencing Act compensation is paid and the injury or the death. It has to be for a “matter” arising from an injury or death;
(b)It is clear that the lump-sum compensation paid to Ms Nora Marshall as a dependant of Zagaretos was paid on behalf of the employer of Zagaretos and not on behalf of either one of the respondents. However, s138B of the Act does not refer to the identity of the payer of compensation, but rather speaks of “entitlement to any compensation”. There is no suggestion that it has to be an entitlement to compensation paid on behalf of one or the other offenders. It must also be remembered that, as detailed earlier in this Ruling, s21(3) of OHSA 2004 provides that for the purposes of s21(1) and s21(2) of OHSA 2004, a reference to “employee” not only includes those who are defined to be an “employee” of the employer charged, but also refers to any independent contractor engaged by the employer and any employees of the independent contractor;
(c)Such submission seemingly is largely based on the speech made in the Upper House about the forthcoming legislation rather than the Second Reading Speech by the responsible Minister. Again, I make reference to the earlier “principles of statutory construction” where it is noted that the High Court has emphasised the primacy of the text in the resolution of any perceived tension between the text and the legislative purpose of the Act. The construction of s138B of the ACA submitted by those acting on behalf of the respondents is “harmonious” and seemingly is consistent with the intention of the legislature.
The claim for compensation by Mr James Zagaretos
104 As already recorded, James Zagaretos lodged an application pursuant to s85B of the Sentencing Act 1991 on or about 11 November 2018. In particular, James Zagaretos claims compensation for:
“(a) Chronic Major Depressive Disorder;
(b) Aggravation of pre-existing Depression, Anxiety and Insomnia.”
105 James Zagaretos also alleges that he had suffered “pain and suffering” as a direct result of the offending committed by the respondents. Although initially claiming medical and associated expenses, no such claim is made on his behalf for such amounts.
106 In that application, James Zagaretos makes clear that he tends to rely on the following material:
(a)A report from his general practitioner, Dr Satish Patel, dated 22 May 2017;[66]
(b)A report of the psychologist, Mr Ray Steenveld, dated 29 October 2016;[67] and
(c)The medico-legal report of the consultant psychiatrist, Dr David Weissman, dated 14 September 2017, in respect to an examination on the same date.[68]
[66]See Tab 9 of the book of documents
[67]See Tab 8 of the book of documents
[68]See Tab 10 of the book of documents
107 In his report, the general practitioner, Dr Patel, notes that James Zagaretos has been suffering “from chronic anxiety/insomnia and depression since 2009”[69] and that the incident on 30 November 2011 (that is the death of Zagaretos) has “exacerbated and worsened both in severity and ongoing symptomatology of his condition”.[70] Dr Patel notes that when such report was dictated, James Zagaretos had a limited capacity for employment and that prognosis for complete improvement was “poor”. Indeed, he noted that the likelihood of further deterioration is “high”.
[69]See Tab 9 of the book of documents
[70]See Tab 9 of the book of documents
108 Dr Patel arranged for James Zagaretos to attend this psychologist, Mr Ray Steenveld, pursuant to a Mental Health Care Plan. Seemingly, his initial appointment was to be 13 November 2016.
109 When seen by Dr Weissman on 14 September 2017, Dr Weissman obtained a detailed history, made a mental-state examination and, on the basis of all information, formed certain opinions.
110 In particular, Dr Weissman considered that James Zagaretos had a certain degree of pre-existing, Chronic Depression, Anxiety and Insomnia, as well as probable, premorbid, psychological and emotional vulnerability factors.
111 Furthermore, in terms of the claimed incident – that is, the death of Zagaretos – Dr Weissman was of the opinion that James Zagaretos developed a “moderate aggravation of pre-existing depression, anxiety and insomnia, such that his pre-existing Chronic Adjustment disorder has evolved into a Chronic Major Depressive Disorder.”[71] Furthermore, Dr Weissman was of the opinion that James Zagaretos experiences “some mild traumatisation features”, but not a full-blown Chronic Post-Traumatic Stress Disorder due to the death of Zagaretos, and is also suffering from an “unresolved, protracted, prolonged, abnormal grief reaction and complicated bereavement process.”[72]
[71]See Tab 10 of the book of documents
[72]See Tab 10 of the book of documents
112 Dr Weissman obtained a history that because of the deaths of both paternal grandparents and his good friend Terry, his grief reaction and bereavement represents a “claim-related aggravation of pre-existing and unrelated conditions”.[73] Dr Weissman also considered that James Zagaretos suffers from alcohol abuse.
[73]See Tab 10 of the book of documents
113 Dr Weissman also considered that the psychiatric prognosis of James Zagaretos was “quite uncertain and guarded” and that he would only ever probably have a capacity for “partial suitable duties in a relatively low key – low stress environment.”[74] In this respect, James Zagaretos has not worked since Christmas 2009, when he was “sacked” from an ANZ call centre, where he had worked for some four to five years.
[74]See Tab 10 of the book of documents
114 It was common ground between the parties that to the extent that James Zagaretos was entitled to a “compensation order”, such compensation will be limited to “the injury” as a direct result of the offending by the respondents.
115 The respondents submit that the Court should exercise the discretion contained in s85F of the Sentencing Act 1991 to refuse to hear the application by James Zagaretos on the basis of the complexity attending such application and, in particular, issues of contribution to any “compensation order” by others not involved in this application and, also, issues surrounding the making of any “compensation order” in respect of the “aggravation” injury claimed by James Zagaretos.
116 On or about 30 November 2017, pursuant of s28LT of the Wrongs Act 1958, James Zagaretos, through his solicitors, served on Downer (and probably others) a Certificate of Assessment and Claimant Prescribed Information Form.[75]
[75]See Tab 27 of the book of documents which referred to Zagaretos being killed when hit by a street sweeper. The form named the five defendants (including the two respondents) in Nora Marshall’s Supreme Court proceedings as respondents to the claim and claimed injury in these terms “aggravation of pre-existing depression, anxiety and insomnia; chronic major depressive disorder, with unresolved, protracted, prolonged grief reaction and complicated bereavement process and traumatisation features; alcohol abuse.”
117 On 3 May 2018, a Medical Panel appointment under Part BA of the Wrongs Act 1958 determined that the degree of impairment resulting from the psychiatric or psychological injury to James Zagaretos alleged in his claim, satisfied the threshold level.[76] The Court was informed during the course of submissions on 7 and 8 November 2019 that James Zagaretos had yet to issue common law proceedings.
[76]See Tab 12 of the book of documents
118 It would also appear that James Zagaretos has no basis to make a claim for compensation under the ACA and, indeed, the respondents made clear that s138B of the ACA had no relevance to his claim for compensation under s85B of the Sentencing Act 1991.
119 Given the nature of the offending by the respondents, James Zagaretos was not a complainant or, indeed, a witness, during the course of the trial. Furthermore, although his mother, Nora Marshall, declared a Victim Impact Statement which was read in open court during the sentencing process, James Zagaretos lodged no Victim Impact Statement.
120 This may be compared to a criminal proceeding to say, for example, an offence involving intentionally causing serious injury, where the evidence of the complainant both as to the circumstances of the assault may be relevant to the mens rea element of the alleged offender and the nature of the injuries be relevant to whether or not they were “serious” would come out during the course of the criminal trial. Perhaps this is also highlighted by s85F of the Sentencing Act 1991, which largely concerns itself with evidence and documents emerging from the criminal trial. However, it is to be noted, of course, that s85G(1)(a) and s85G(1)(b) does permit the victim to give evidence, or call another person to give evidence, in relation to an application for compensation.
121 Over the years, since the introduction of Subdivision (1) of Division 2 of Part 4 of the Sentencing Act 1991, various courts have stressed the summary nature of the procedure:
(a)“Those provisions are designed to provide an expeditious, cheap means of determining claims of compensation”;[77]
(b)“The method of s 85B is to provide a quick low cost mechanism for the victim to recover compensation.”;[78]
(c)“I have said that convenience and expediency are purposes of compensation order applications.”;[79]
(d)“Section 85B is plainly intended to facilitate a swift, and relatively low cost means of redress for the harm suffered by victims of crime.”[80]
[77]Per Buchanan JA in Kaplan v Lee-Archer (op cit) at paragraph [6]
[78]Per Nettle JA (op cit) at paragraph [60]
[79]Per T Forrest J in Moresco v Budimir (op cit) at paragraph [23]
[80]Per Weinberg JA in Brooks v Meade (op cit) at paragraph [27]
122 In particular, I also refer to Mirik, wherein Bell J noted that the procedures introduced into the Act by Subdivision 1, Division 2 of Part 4 of the Sentencing Act 1991 enhanced the procedures enabling victims to make applications for compensation. In particular, Bell J stated:
“I think it is necessary to take account of these important changes when applying the principle that the power to award criminal compensation is meant for straightforward cases. The principle cannot be applied with its former force.”[81]
[81](Op cit) at paragraph [67]
123 In Kaplan, it is clear the court recognised that there are circumstances where an application pursuant to s85B of the Sentencing Act 1991, may well be so complex that it is unsuitable for resolution by the summary procedure envisaged by s85B. In particular, Buchanan J recognised that matters such as “the presence of possible causes of injury other than the commission of the crime by the offender(s)”[82] or the injury being “the result of the commission of a crime and other wrongdoing”[83] may render a claim unsuited to an award of compensation under those provisions and enliven and usually warrant the exercise of the courts’ discretion to decline and hear an application.[84]
[82]See Kaplan (op cit) at paragraph [31]
[83](Op cit) at paragraph [33]
[84](Op cit) at paragraphs [31]-[32]
124 Also in Kaplan, Nettle J recognised that if the injury was the result of both the commission of the crime and other wrongdoing, and questions of contribution are to be investigated, “the judge is likely to conclude that the matter is inappropriate to be dealt with under the section”.[85]
[85](Op cit) at paragraph [60]
125 It is also worth noting that Bell J in Mirik, stated that if there are “substantial questions of contribution, the court might determine it would not be appropriate to hear and determine the application.”[86]
[86](Op cit) at paragraph [20]; reference was made to Kaplan (op cit)
126 In his written submissions dated 10 October 2018, Senior Counsel for Downer submitted that the applications presently before the Court are readily distinguished by their facts from the applications considered in Kaplan and Mirik insofar as those cases were not considered to be “too complex”. It is convenient to refer to such submission:
(a)“In Kaplan, the contended complexity arose because it was said the applicant’s psychiatric injury arose partly as a result of the conduct of which the offender had been charged and convicted (numerous counts of theft from his employer’s cash register which he had effected by falsified refund transactions in which the applicant, a co-worker, played a role at the offender’s direction), and partly as a result of other conduct (including a threat by the offender to slit the applicant’s throat, which threat, the applicant said he overheard in a telephone conversation with a security guard), but the Court of Appeal noted it was not contended the primary judge fell into the error in concluding that contended other conduct had not in fact occurred. Other causes (sexual harassment by other staff at the same workplace, being compelled to work in a confined space with toxic chemicals, accusations of fraud made against the applicant by WorkCover and being followed and receiving intimidating telephone calls after he resigned) were also contended, but the primary judge accepted the evidence of a psychiatrist, that the victim’s condition was caused primarily by the offender involving the victim in the offender’s fraudulent conduct. By contrast, in the present case, there is no dispute that the wrongful conduct by persons other than the offenders who are before the court did occur and was a concomitant cause of the applicant’s injury, and in James Zagaretos’s application there is no clear evidence that his condition is primarily caused by the death; rather, the matters noted in … suggest this is not the case, or at least that there will be a complex question to determine in that regard;
(b)In Mirik, the contended complexity arose because there were two offenders before the court, both of whom were convicted of assaulting the applicant, but only one of whom also anally raped him; however, unlike the present case, there was no issue of pre-existing injury and, unlike the present case, all wrongdoers were then before the court and the relative contributions and their respective conduct to the claimant’s injury could be determined on the materials before the court.”[87]
[87]Submissions dated 10 October 2018 by counsel acting on behalf of Downer
127 Those acting for James Zagaretos submit that, essentially, it is not a “complex matter” in sorting out the extent of any aggravation of his psychiatric state as brought about by the death of his stepfather. Furthermore, that in all the circumstances, the better course of action is to award a sum of compensation and if there are to be contribution issues, that that be determined by those pursuant to a Wrongs Act 1958 claim.
128 I do accept, in general terms, the force of the comments of Bell J in Mirik, that it is probable there are many more cases which hitherto had been considered complex can now be determined in a summary way under the Sentencing Act 1991 provisions. However, there are clearly also matters which give rise to “complexity” where it would be inappropriate for a summary procedure to be entertained.
129 In particular, I consider that there is a clear basis for asserting that the “injury” relied on by James Zagaretos is a result of both the commission of offences committed by Downer and VicRoads and potentially other wrongdoing by Statewide, U-Sweep and Pollard. Indeed, such a view is consistent with those entities being parties to the common law claim brought by Nora Marshall.
130 If the matter was heard summarily, and Downer and VicRoads ordered to pay compensation to James Zagaretos, contribution almost certainly would be sought by the respondents against Statewide, U-Sweep and Pollard pursuant to the provisions of the Wrongs Act 1958. Leaving aside that this would result in effectively two types of proceedings, it must be borne in mind that Statewide, U-Sweep and Pollard would have no role in the determination of an appropriate compensation order and would be confronted with that sum at future contribution proceedings.
131 I also consider, on balance, that given the significant pre-existing psychiatric state of James Zagaretos prior to the death of his stepfather, complex issues do arise as to the nature and extent of any aggravation or exacerbation of the pre-existing condition. Of course, the nature and the extent of any aggravation and/or exacerbation must be ascertained before there can be an evaluation on common law principles of the quantum of compensation for “pain and suffering”. It also must be borne in mind that the compensation would be for the extent of the aggravation and/or exacerbation rather than the injury in its aggravated and/or exacerbated state.
132 I do acknowledge that this aspect of the matter is not as compelling as the first issue for refusing to have this matter determined in a summary way but, nonetheless, does warrant something more than a summary hearing.
133 I should also add that if I be wrong that Nora Marshall has no entitlement to a “compensation order” under s85B of the Sentencing Act 1991 as a result of the operation of s138B of the ACA, then I would take the same view in relation to her claim for compensation, and refuse to hear such application on the basis of the complexity attending such application – in her case, issues of contribution to any “compensation order” by others not involved in this application. Of course, it must be remembered that Nora Marshall has a common law claim on foot and James Zagaretos seemingly has attended to the preliminary matters to allow a common law claim to be issued.
Conclusion
134 In relation to the claim for compensation made by Ms Nora Marshall, pursuant to s85B of the Sentencing Act 1991, I rule that Ms Nora Marshall has no entitlement to a “compensation order” under s85B of that Act as a result of the operation of s138B of the ACA as amended.
135 In respect to the claim for compensation made by Mr James Zagaretos, pursuant to s85B of the Sentencing Act 1991, I rule that in exercise of the power conferred under s85F of the Sentencing Act 1991, to refuse to hear and determine such an application on the basis that relevant factors required do not sufficiently appear through the operation of s85F and s85G of the Sentencing Act 1991 and, generally, the complexity relating to the circumstances outlined in this Ruling.
136 I will hear the parties in relation to any issues pertaining to costs.
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