Edwards v Virgin Blue International Pty Ltd - [2020] SASCFC 98

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
EDWARDS v VIRGIN BLUE INTERNATIONAL PTY LTD
[2020] SASCFC 98
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, the Honourable Justice Stanley and the Honourable Justice Doyle)
23 October 2020

STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - GENERAL APPROACHES TO INTERPRETATION - WORDS TO BE GIVEN LITERAL AND GRAMMATICAL MEANING - PARTICULAR CASES
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - GENERAL APPROACHES TO INTERPRETATION - REFERENCE TO CONTEXT
WORKERS' COMPENSATION - ALTERNATIVE RIGHTS AGAINST EMPLOYER AND/OR THIRD PARTIES AND CONSEQUENCES THEREOF - ACTIONS FOR DAMAGES AGAINST EMPLOYER - STATUTORY CONSTRAINT ON ACTIONS FOR DAMAGES - GENERALLY
The appellant brought a claim for damages for pure mental harm she alleged she suffered upon being informed of the death of her son. Her son died in Thailand on 14 February 2010. She alleged he died in the course of his employment with the respondent. The appellant’s son’s employment involved him travelling internationally. His contract of employment with the respondent provided that his base was New South Wales. She alleged that his death was due to a breach of the respondent’s duty of care. She further alleged that she suffered the nervous shock injury as a result of the breach by the respondent of its duty of care. The appellant instituted proceedings in the Adelaide Magistrates Court claiming damages for her injury. She did so on the basis that she suffered her injury in South Australia.
Separately, the appellant successfully brought a claim for compensation for the death of her son pursuant to s 25 of the Workers Compensation Act 1987 (NSW) (the NSW Act). Her entitlement to the death benefit under the NSW Act flowed from the fact that his employment contract stipulated that his employment was based in New South Wales.
The respondent brought an interlocutory application in the Magistrates Court seeking the summary dismissal of the appellant’s claim for damages. The magistrate granted the respondent’s application and dismissed the appellant’s claim. The magistrate held that the appellant’s claim was statute barred pursuant to s 151AD of the NSW Act. The magistrate accepted that s 151AD of the NSW Act applied to the appellant’s claim by reason of the provisions of s 58AA of the Workers Rehabilitation and Compensation Act 1986 (SA) (the repealed Act).
The magistrate reasoned that the appellant’s claim was clearly a claim for damages for pure mental harm which arises wholly from nervous shock in connection with the death of a worker. The magistrate considered that the appellant’s claim fell squarely within the parameters of s 151AD of the NSW Act. The magistrate reasoned that the NSW Act had no extraterritorial application but the repealed Act in this case identified the substantive law of New South Wales as the applicable law. That law provides that the common law claim brought by the appellant is statute barred as a consequence of s 151AD. The magistrate held that even though the personal injury claim was a wholly different…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] SASCFC 98
Decision Date: 23 October 2020

CaseChat Overview and Summary

In *Edwards v Virgin Blue International Pty Ltd*, the Full Court of the Supreme Court of South Australia considered an appeal from a magistrate's decision summarily dismissing the appellant's claim for damages for pure mental harm. The appellant alleged she suffered this injury as a result of being informed of her son's death, which occurred in Thailand during his employment with the respondent. The appellant had separately received compensation for her son's death under New South Wales workers' compensation legislation. The respondent successfully sought summary dismissal of the appellant's damages claim, arguing it was barred by section 151AD of the *Workers Compensation Act 1987* (NSW), a provision the magistrate found applicable by virtue of section 58AA of the *Workers Rehabilitation and Compensation Act 1986* (SA).

The central legal issue before the Full Court was the proper construction and application of section 58AA of the South Australian Act. Specifically, the court had to determine whether this provision mandated that the substantive law of New South Wales governed the appellant's claim for damages for pure mental harm, thereby rendering it statute-barred under section 151AD of the NSW Act. This involved considering whether the appellant's claim was a claim for damages "in respect of the injury" to the worker, as contemplated by section 58AA.

The Full Court, allowing the appeal, held that section 58AA did not apply to the appellant's claim. The court reasoned that the operation of section 58AA is confined to claims for damages in respect of an injury *to the worker* or the death *of the worker*. The appellant's claim was for damages for an injury she personally suffered (nervous shock), not for the injury or death of her son. The court drew an analogy with the High Court's decision in *The Workers’ Compensation Board of Queensland v Technical Products Pty Ltd*, which held that damages for nervous shock suffered by a worker's wife were not "damages in respect of that injury" to the worker, as a separate injury was interposed. Therefore, the substantive law of New South Wales did not govern the appellant's claim by operation of section 58AA.

Consequently, the Full Court set aside the magistrate's order dismissing the action and entering judgment for the respondent. The appeal was allowed, and the matter was remitted for further proceedings.

Orders

Orders of the court

Held: (per Stanley J, Kourakis CJ and Doyle J agreeing):

1. Section 58AA does not apply to the appellant’s claim because her claim is for an injury she suffered, not an injury that the worker suffered. The extent of its operation is confined to applying only to a claim for damages in respect of an injury to, or death of, a worker.

2. Section 58AA does not provide that the substantive law of that State governs all liability in respect of an injury. Whether the substantive law of that State governs a claim depends on whether the claim is a claim for damages in respect of that injury to the worker (or death of the worker). That is a claim for damages measured by reference to the loss or damage resulting from that injury to the worker (or death of the worker).

3. The appeal is allowed. The magistrate’s order dismissing the action and entering judgment for the respondent is set aside.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

A perusal of those provisions does not give any cause to review the construction of s 58AA of the WRC Act which I would adopt.Conclusion I would join in the orders proposed by Stanley J. STANLEY J:Introduction This is an appeal from a judgment of a magistrate summarily dismissing the appellant’s claim for damages for personal injury. The appellant brought a claim for damages for pure mental harm she alleged she suffered upon being informed of the death of her son. Her son died in Thailand on 14 February 2010. She alleged he died in the course of his employment with the respondent, Virgin Blue International Pty Ltd. The appellant’s son’s employment involved him travelling internationally. His contract of employment with the respondent provided that his base was New South Wales. She alleged that his death was due to a breach of the respondent’s duty of care. She further alleged that she suffered the nervous shock injury as a result of the breach by the respondent of its duty of care. The appellant instituted proceedings in the Adelaide Magistrates Court claiming damages for her injury. She did so on the basis that she suffered her injury in South Australia. Separately, the appellant successfully brought a claim for compensation for the death of her son pursuant to s 25 of the Workers Compensation Act 1987 (NSW) (the NSW Act). Her entitlement to the death benefit under the NSW Act flowed from the fact that his employment contract stipulated that his employment was based in New South Wales. The Magistrates Court dismisses the appellant’s action The respondent brought an interlocutory application in the Magistrates Court seeking the summary dismissal of the appellant’s claim for damages. The magistrate granted the respondent’s application and dismissed the appellant’s claim. The magistrate held that the appellant’s claim was statute barred pursuant to s 151AD of the NSW Act. Section 151AD(1) provides:No damages for pure mental harm may be awarded against an employer liable to pay compensation under this Act in respect of the death of or injury to a worker if the pure mental harm arises wholly or partly from mental or nervous shock in connection with the death of or injury to the worker unless the pure mental harm is a work injury (that is, an injury to the worker or another worker). Section 151AD was enacted subsequent to the appellant suffering her injury. Pursuant to Schedule 6, Part 19H, Division 3, Clause 16 of the NSW Act, s 151AD applied to a claim for damages in respect of harm suffered before 19 June 2012 unless a claim for damages in respect of such harm was commenced before 19 June 2012. The appellant commenced her claim in the Magistrates Court on 12 December 2013. The magistrate accepted that s 151AD of the NSW Act applied to the appellant’s claim by reason of the provisions of s 58AA of the Workers Rehabilitation and Compensation Act 1986 (SA) (the repealed Act). Section 58AA provides:(1) If there is an entitlement to compensation under the statutory workers compensation scheme of a State in respect of an injury to a worker (whether or not compensation has been paid), the substantive law of that State is the substantive law that governs— (a) whether or not a claim for damages in respect of the injury can be made; and (b) if it can be made, the determination of the claim. (2) This Subdivision does not apply if compensation is payable in respect of the injury under the statutory workers compensation scheme of more than 1 State. (3) For the purposes of this section, compensation is considered to be payable under a statutory workers compensation scheme of a State in respect of an injury if compensation in respect of it— (a) would have been payable but for a provision of the scheme that excludes the worker's right to compensation because the injury is attributable to any conduct or failure of the worker that is specified in that provision; or (b) would have been payable if a claim for that compensation had been duly made, and (where applicable) an election to claim that compensation (instead of damages) had been duly made. (4) A reference in this section to compensation payable in respect of an injury does not include a reference to compensation payable on the basis of the provisional acceptance of liability.

Ratio Decidendi

Legal Principle Established

The appellant contends that the magistrate erred on a number of grounds. For the disposition of the appeal it is sufficient to confine consideration to the question of construction. Consideration The appellant contends that s 58AA does not apply to the appellant’s claim because her claim is for an injury she suffered, not an injury that the worker suffered. The appellant submits that the operation of s 58AA is confined to derivative actions of the Lord Campbell’s Act kind. The appellant relies upon the reasoning of the High Court in The Workers’ Compensation Board of Queensland v Technical Products Pty Ltd.[23][23] (1988) 165 CLR 642. Section 8(1) of the Workers’ Compensation Act 1916 (Qld) (Queensland Act) required every employer to insure with the Workers’ Compensation Board against “all sums for which, in respect of injury to any worker employed by him” he became legally liable to pay compensation under the Queensland Act, or, in the case of such injury, “damages arising under circumstances creating also, independently of the Act, a legal liability in the employer to pay damages in respect of that injury”. Section 9A provided that where an injury entitling a worker to compensation from the Workers’ Compensation Fund (the fund) was received under “circumstances creating also, independently of this Act, a legal liability in the employer to pay damages in respect of that injury”, damages payable by the employer should be reduced by the compensation payable from the fund and the worker or his dependents should receive that reduced amount from the fund. At issue was whether s 9A required a reduction of an award of damages made to the worker’s wife who had succeeded in a claim for damages for nervous shock. The High Court held there was no such requirement. In their joint reasons Wilson and Gaudron JJ said:[24]The crux of the problem is the proper construction of the phrase "damages in respect of that injury" in s. 8(1) of the Act. The injury referred to is clearly the injury suffered by the worker himself. If [the worker’s wife] succeeds in establishing her claim against the respondent she will be awarded damages. But her damages will not be quantified by reference to the injury suffered by the worker. Another injury is interposed, namely, the nervous shock and psychiatric illness which she has suffered. At first sight, it may seem strange that damages for the illness which she has suffered could be said to fall naturally within the description of "damages in respect of that [the worker's] injury". Certainly, the primary meaning of the phrase would describe the damages flowing directly to the worker or his dependants from the injury which he had suffered in the course of his employment. The conclusion of the Full Court can only be supported if the phrase yields a legislative intention to extend the protection of insurance with the Board to damages resulting from an injury other than that suffered by the worker. For that conclusion to follow the damages in respect of the injury would have to be so connected with the worker's injury for it to be said that they are "damages in respect of that injury" within the meaning of those words in s. 8(1)(b) of the Act. It has been said, perhaps somewhat extravagantly, that the words "in respect of" "have the widest possible meaning of any expression intended to convey some connexion or relation between the two subject-matters to which the words refer": Trustees Executors & Agency Co. Ltd. v. Reilly, cited in State Government Insurance Office (Q.) v. Crittenden. The words were cited again by Gibbs J. in McDowell, and by Mason J. in State Government Insurance Office (Q.) v. Rees, when his Honour added the comment: "But, as with other words and expressions, the meaning to be ascribed to 'in respect of' depends very much on the context in which it is found."[citations omitted][24] [1988] HCA 49, (1988) 165 CLR 642 at 646-647.