Edwards v Tasmanian Mines Ltd

[2014] TASSC 49

[2014] TASSC 49

COURT:  SUPREME COURT OF TASMANIA

CITATION:                 Edwards v Tasmanian Mines Ltd [2014] TASSC 49

PARTIES:  EDWARDS, Graeme
  v
  TASMANIAN MINES LTD

FILE NO:  533/2014
JUDGMENT

APPEALED FROM:  E v Tasmanian Mines Ltd [2014] TASWRCT 27

DELIVERED ON:  1 October 2014
DELIVERED AT:  Hobart
HEARING DATE:  23 September 2014
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Workers Compensation – Assessment and amount of compensation – Discontinuation of payments – Application by worker for continuation of payments – Generally – Worker injured after attaining age of 64 years – Cessation of payments one year after injury – Jurisdiction of Workers Rehabilitation and Compensation Tribunal (Tas) to order further payments.

Workers Rehabilitation and Compensation Act (1988) (Tas), s 87.
Aust Dig Workers Compensation [431]

REPRESENTATION:

Counsel:
             Appellant:  L Topfer
             Respondent:  P L Jackson
Solicitors:
             Appellant:  McLean McKenzie & Topfer
             Respondent:  Abetz Curtis

Judgment Number:  [2014] TASSC 49
Number of paragraphs:  27

Serial No 49/2014

File No 533/2014

GRAEME EDWARDS v TASMANIAN MINES LTD

REASONS FOR JUDGMENT  BLOW CJ

1 October 2014

1. This is an appeal by a worker, Graeme Edwards, from a decision of the Workers Rehabilitation and Compensation Tribunal concerning his eligibility to apply for weekly payments of compensation. On 3 January 2013 he was injured in the course of his employment by the respondent, Tasmanian Mines Ltd. He was then 65 years old. Under s 87 of the Workers Rehabilitation and Compensation Act 1988 ("the Act"), if an injury occurs after a worker has attained the age of 64 years, weekly payments are payable for only one year after the date of the injury, unless the tribunal makes a determination under s 87(3) that weekly payments may continue after that anniversary. In this case the worker received weekly payments of compensation from the employer for a year after the date of the injury, but the employer then ceased to pay them. Some weeks after the payments ceased, the worker applied to the tribunal for a determination under s 87(3). However the tribunal, constituted by its chief commissioner, Mr S R Carey, held that it had no jurisdiction to make the determination sought: E v Tasmanian Mines Ltd [2014] TASWRCT 27. In essence, the learned chief commissioner held that, because of the wording of s 87, the tribunal did not have jurisdiction unless the matter was referred to it within the first year after the date of the injury, whilst weekly payments were still being made. This is an appeal from that decision.

2. Section 69 of the Act makes provision for injured workers to receive weekly payments of compensation when they are totally or partially incapacitated for work as a result of work-related injuries. Section 87 makes provision for the cessation of weekly payments on or after a worker's 65^th birthday.  It provides as follows:

   "87  Cessation on account of age of entitlement to weekly payments

   (1) Subject to subsection (2), an entitlement of a worker to weekly payments of compensation under section 69 in relation to an injury in respect of which an employer is liable to pay compensation under this Act ceases —

   (a)if the injury occurs on or before the date on which the worker attains the age of 64 years, on his attaining the age of 65 years; or

   (b)if the injury occurs after the date on which the worker attains the age of 64 years, on the date one year after after [sic] the injury occurs.

   (2)   Where the terms and conditions of a worker's employment are such as to permit him or her to continue in that employment beyond the age of 65 years, the worker may refer to the Tribunal for determination the question as to whether or not the provisions of subsection (1) should apply to him.

   (3)   In any case referred to it pursuant to subsection (2), if the Tribunal is satisfied —

   (a)that the terms of the worker's employment would have entitled him or her to continue in that employment beyond the age of 65 years and the worker, but for the injury referred to in subsection (1), intended to continue in that employment beyond that age; and

   (b)that the incapacity of the worker resulting from that injury will continue beyond the date on which he or she attains the age of 65 years —

   the Tribunal may determine that weekly payments of compensation may be continued beyond the dates mentioned in subsection (1) and shall determine the period for which such payments are to be continued."

3. In this case it is common ground that the terms of the worker's employment entitled him to continue in that employment beyond the age of 65 years. He was injured shortly before his 66^th birthday.  He is now 67.  His employment has not been terminated, but he is not being paid.  It is common ground that he intended to continue in his employment despite having attained the age of 65 years.

4. The Act does not contain any express provision to the effect that a case may not be referred to the tribunal pursuant to s 87(2) after the cessation date that is appropriate under s 87(1) – the day the worker attains the age of 65 years if he or she is injured before attaining the age of 64 years, or otherwise the first anniversary of the injury. However the learned chief commissioner took the view that, because of the wording of the section, the tribunal did not have any jurisdiction to make a determination under s 87(3) if the case was referred to it after the applicable cessation date, nor if weekly payments were not being made at the time of the referral.

5. He correctly observed that s 87(1) permits an employer to cease making weekly payments, without giving notice to the worker and without seeking any order from the tribunal, upon a worker attaining the age of 65 years or upon the first anniversary of the injury, whichever is applicable. Those observations are uncontroversial: Freemasons Homes of Southern Tasmania v Greenwood A65/1995 [1995] TASSC 119), Underwood J (as he then was), at 4; State of Tasmania v Barrett (1998) 8 Tas R 201 per Crawford J (as he then was) at 217.

6. The reasoning which led the learned chief commissioner to conclude that the tribunal had no jurisdiction appears in the following paragraphs of his reasons:

   "7 Section 87(2) provides that a worker may seek a determination of the Tribunal whether s87(1) '... should apply to him ...'. By the happening of a defined event in this case s87(1) has already applied to the worker and the employer has terminated the making of weekly payments. Section 87(2) is expressed in a way that describes the taking of action before a defined event occurs. This interpretation is supported by s87(3) that refers to the nature of the Tribunal determination being '... that weekly payments of compensation may be continued beyond the dates mentioned in subsection (1) ...'. By referring to weekly payments being 'continued' and referring to 'the dates mentioned in subsection (1)' rather than say, the date upon which weekly payments ceased to be paid, the interpretation that weekly payments must be being paid at the relevant time is supported.

   8      The Tribunal is reluctant to find in this manner however this appears the plain language meaning of the provision. Other observations of note are that s86 expressly provides for a right of referral to the Tribunal after reduction or termination of weekly payments and a s88 referral can only be made at the time when weekly payments are actually being made.

   9 I consider this interpretation is based upon the plain language of the provision and there is no requirement to consider rules or approaches to statutory interpretation of what is socially beneficial legislation. I do not consider there is any ambiguity or uncertainty that needs to be addressed. For the above reasons therefore the Tribunal determines that it does not have jurisdiction to entertain the worker's referral pursuant to s87(2)."

7. Two propositions emerge from those paragraphs. One is that s 87(2) only permits a case to be referred to the tribunal at a time when weekly payments are being paid. The worker contends that that proposition is incorrect. The employer concedes that it is incorrect, but contends that the learned chief commissioner's error as to that point was inconsequential. The second proposition is that a referral under s 87(2) may only be made before the cessation date that is applicable under s 87(1). The worker contends that that proposition is also incorrect, but the employer contends that the proposition is correct.

8. The principles applicable to the interpretation of s 87 are as stated in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at par [47], where Hayne, Heydon, Crennan and Kiefel JJ said (omitting footnotes):

   "This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy." 

9. Counsel for the employer argued that a number of "clear grammatical clues" to the correct interpretation of s 87(2) and (3) were to be found in the text of those subsections. First of all, he drew attention to the fact that, under s 87(2), the question to be referred to the tribunal by a worker was "whether or not the provisions of subsection (1) should apply to him". He argued to the effect that, after the liability to make weekly payments has ceased pursuant to s 87(1), the provisions of that subsection already apply to a worker; but that the wording assumes that the reference concerns a "question of whether or not something that is yet to occur should occur".

10. Next, counsel for the employer drew attention to the nature of the determination that can be made under s 87(3) – a determination "that weekly payments of compensation may be continued beyond the dates mentioned in subsection (1)". He argued that the reference to continuation implies a continuation of payments to which a worker was entitled at the date of referral, not to the resumption of payments that had ceased before then, which would not amount to a continuation at all.

11. Next, counsel for the employer drew attention to the wording of the prerequisites to a s 87(3) determination. He argued that the words, "the terms of the worker's employment would have entitled him or her to continue that employment beyond the age of 65 years", must relate to the terms of the worker's employment before the worker attained the age of 65 years. He argued that the requirement that the worker "intended to continue in that employment beyond that age" related to a state of mind before the age of 65 years was attained. He argued that the requirement that the incapacity of the worker "will continue beyond the date on which he or she attains the age of 65 years" could only relate to an incapacity that existed before the worker attained the age of 65 years.

12. If, as suggested by counsel for the worker, the reference in s 87(3)(b) to an incapacity that "will continue beyond the date on which he or she attains the age of 65 years" limits the scope of the section to incapacities arising before a worker's 65^th birthday, then workers injured after attaining the age of 65 years could never have any entitlement to weekly payments.  That surely cannot have been the intention of Parliament.

13. If an employer were obliged by the Act to make weekly payments of compensation to a worker and, in contravention of the Act, was not doing so, then, on a strictly literal reading of s 87(3), there could be no determination authorising weekly payments to be "continued" because there were no payments to continue. Counsel for the respondent has conceded that the validity of a s 87(2) referral is not dependent upon weekly payments being made at the time of the referral. It must follow that the word "continued" is intended not just to apply in relation to weekly payments that are in fact being made prior to the cessation date that is applicable under s 87(1). If the word "continued" is not to be read literally, then its meaning must be found by considering the scope, purpose and context of s 87.

14. Clearly the purpose of s 87 is to make provision for weekly payments of compensation to be made to workers who, but for an incapacity caused by a work-related injury, would have been working after turning 65, but not beyond the date when they would have retired.

15. The Act is a piece of beneficial legislation.  As a general rule, beneficial legislation ought to be given an interpretation that is favourable to the class of persons intended to be benefitted by the legislation: McDermott v Owners of SS Tintoretto [1911] AC 35 at 46; Wilson v Wilson's Tile Works Pty Ltd (1960) 104 CLR 328 at 335; Bird v Commonwealth (1988) 165 CLR 1 at 9. However s 87(1) is not a beneficial provision, but a provision that unambiguously restricts workers' rights. More significantly though, s 87(2) and (3) are ameliorative subsections, intended to benefit incapacitated workers aged 65 and over so long as they would have been likely to have remained in the workforce if not injured.

16. There is no reason why, as a matter of policy, weekly payments after a worker's 65^th birthday, or after the first anniversary of an injury to a worker aged 64 or older, should have to be claimed in advance, before the cessation date that is applicable under s 87(1). There is nothing in the relevant second reading speech to suggest that any such requirement was intended. In that speech, the Minister for Labour and Industry, Mr J Beswick, said only the following in relation to s 87:

    "The bill includes a provision under which compensation payments to an injured worker will cease on his attaining the age of sixty-five years or, where the injury is suffered in his sixty-fifth year, twelve months after the date of injury.  A worker whose terms of employment would have allowed him to continue in his employment beyond the age of sixty-five years and who expected to continue in that employment may refer to the commissioner the question as to whether payments may in the circumstances continue beyond age sixty-five."  (Hansard, House of Assembly, 20 April 1988, page 868.)

17. If a referral under s 87(2) could only be made prior to the cessation date that is applicable under s 87(1), some of the consequences would be as follows:

    · No extensions of time could be granted, since the Act does not contain any provisions permitting time to be extended in relation to s 87.

    · A worker's right to seek further weekly payments under s 87(3) could be lost as a result of incapacity, ignorance, oversight, a lawyer's negligence, or legal offices being closed at Christmas time. It is likely that many workers would not think of seeking legal advice while weekly payments were continuing, but would seek advice after the weekly payments stopped, by which time it would be too late for them to invoke s 87(2).

    ·     A worker who had temporarily recovered and returned to work before the applicable cessation date would have no entitlement to further payments if his or her medical condition deteriorated thereafter and a subsequent period of incapacity resulted. 

    ·     If a worker suffered an injury that caused a gradually deteriorating medical condition, resulting in incapacity only after the applicable cessation date, no weekly payments would be payable.

    ·     Workers not in dispute with their employers or their employer's insurers would have to commence proceedings in the tribunal in order to preserve their rights.

    · Workers unsure as to their eligibility for payments under s 87(3) would have to institute tribunal proceedings in order to preserve any rights that they might have.

    ·     Orders for costs could be sought and obtained against workers who commenced proceedings in order to preserve possible rights, and later abandoned their proceedings.

18. Section 87 has remained in substantially the same form since the Act was first enacted in 1988. Crawford J, made critical comments about the standard of drafting of the Act in State of Tasmania v Barrett (above) at 216, as follows:

    "It is well known to those who have had to interpret the Act, that from a drafting point of view it is a very bad piece of legislation. Experience has shown that its various provisions do not amount to a coherent and cohesive set. … Substantial litigation has been caused by its interpretative difficulties and it is unfortunate that no attempt has been made to replace it with provisions which can be better understood. Substantial time and costs would thereby be saved to litigants and would amount to a real public benefit."

19. Those words may have been heeded to some extent, but they have not resulted in any revision of s 87, not even to deal with the words "after after" in s 87(1)(b).

20. One minor example of bad drafting is to be found in s 87(3). That subsection empowers the tribunal to "determine that weekly payments of compensation may be continued …". The word "may" is inappropriate in that context. Any determination under s 87(3) would be a determination requiring an employer to make weekly payments, not a determination giving the employer any sort of choice. The subsection should have said "must be" or "are to be", rather than "may".

21. Having regard to certain other provisions in the Act in its original form, I think it is clear that, if Parliament had intended to enact a provision that had the effect of establishing a completely inflexible limitation period for any type of referral to the Workers Compensation Commissioner – the predecessor of the tribunal – then it would have done so in clear terms. I say that in the light of the following provisions in the Act in its original form:

    ·     Section 32(1)(b), which fixed a time limit of six months after the date of a worker's injury or death for the making of a claim for compensation.

    ·     Section 38, which provided that the failure to make a claim for compensation within the period prescribed by s 32(1)(b) did not affect the validity of the claim if the failure was occasioned by mistake, absence from the State, or other reasonable cause. 

    ·     Section 39(6), which fixed a time limit of three months after registration of an agreement for the referral of an agreement settling a claim for compensation to the Workers Compensation Commissioner for review.

    ·     Part V which imposed no limitation period in relation to referrals of claims for compensation to the Workers Compensation Commissioner.

    ·     Section 89(7), which fixed a time limit of three months after the registration of a redemption agreement for the referral of a redemption agreement to the Workers Compensation Commissioner for review.

    ·     Section 156, which provided, "No enactment relating to the limitation of actions applies, or shall be deemed to have applied, to any proceedings by a worker under this Act, or under the repealed Act."

22. There is a long line of authority that establishes that legislation should not be construed literally if that would produce unintended or absurd results.  The leading cases are summarised in Pearce and Geddes, Statutory Interpretation in Australia, 7^th ed, at par 2.4.  In Grey v Pearson (1857) 6 HLC 61 at 106; 10 ER 1216 at 1234, Lord Wensleydale said the following:

    "… in construing wills and indeed statutes, and all written instruments, the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no farther."

1. That passage was referred to with approval by Higgins J in Australian Boot Trade Employès' Federation v Whybrow & Co (1910) 11 CLR 311 at 341 – 342.

2. As Gibbs CJ said in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 304:

   "There are cases where the result of giving words their ordinary meaning may be so irrational that the court is forced to the conclusion that the draftsman has made a mistake and the canons of construction are not so rigid as to prevent a realistic solution in such a case."

3. In Footscray City College v Ruzicka (2007) 16 VR 498 at 505 Chernov JA, with whose reasons Warren CJ and Maxwell P agreed, referring to the "golden rule" as stated by Lord Wensleydale in the passage in Grey v Pearson quoted above, said:

   "But the rule is also otherwise applied to avoid construing legislation so as to produce patently unintended or absurd results."

4. The words "continue" and "continued", which are used in the operative part of s 87(3) in relation to the making of weekly payments, are appropriate to refer to the making of a series of payments week after week, as distinct from the continuation of something begun before a worker's 65^th birthday or before the first anniversary of a worker's injury. It is inconceivable that s 87 could have been intended to limit eligibility for weekly payments in the way that the learned chief commissioner held that it did. In order to avoid an unintended and absurd result, I think s 87(3) must be construed as meaning that, if the tribunal is satisfied of the requirements of par (a), and also satisfied that the worker is or will be incapacitated as a result of his or her injury for any period after attaining the age of 65 years, then it may determine that weekly payments of compensation are to be made beyond the dates mentioned in subs (1) and must determine the period during which such payments are to be made. 

5. It follows that the tribunal had jurisdiction to deal with the worker's referral, and that the learned chief commissioner erred in law in holding that it did not.  I have therefore decided to allow the appeal, set aside the determination of the learned chief commissioner, remit the matter to the tribunal, and direct that it be determined by another commissioner.