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claim by reason of the provisions of s 58AA of the Workers Rehabilitation and Compensation Act 1986 (SA) (the repealed Act).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 cause of action to the death benefit claim, and the lex loci was different, it still fell within the category of claim contemplated by s 58AA of the repealed Act and s 151AD of the NSW Act.

The appellant appealed to this Court seeking to have the magistrate’s order dismissing the action and entering judgment for the respondent set aside.

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.

Workers Compensation Act 1987 (NSW) ss 151AD, 151P; Workers Rehabilitation and Compensation Act 1986 (SA) ss 58AA, 58AD; Workers’ Compensation Act 1916 (Qld) ss 8, 9A; Civil Aviation (Carriers’ Liability) Act 1959 (Cth) ss 28, 35, 36; Workers Compensation Act 1951 (ACT) ss 184, 185, referred to.

The Workers’ Compensation Board of Queensland v Technical Products Pty Ltd (1988) 165 CLR 642; South West Helicopters Pty Ltd v Stephenson (2017) 98 NSWLR 1; McDowell v Baker (1979) 144 CLR 413; South Pacific Air Motive Pty Ltd v Magnus (1988) 87 FCR 301; Parkes Shire Council v South West Helicopters Pty Ltd (2019) 266 CLR 212, discussed.

SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; SAS Trustee Corporation v Miles (2018) 265 CLR 137; Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378, considered.

EDWARDS v VIRGIN BLUE INTERNATIONAL PTY LTD
[2020] SASCFC 98

Full Court:      Kourakis CJ, Stanley and Doyle JJ

1. KOURAKIS CJ:     I gratefully adopt the summary of the litigation of the legislative content set out in the judgment of Stanley J.  I would allow the appeal and join in the orders proposed by Stanley J for the following reasons.

2. A personal injury claim has two essential elements:

   (1)A plea that the defendant has engaged in conduct which, in the attendant circumstances, is a wrong for which the defendant is liable (the cause of action); and

   (2)A claim for relief by way of damages for the injury and loss to the plaintiff caused by the defendant’s conduct.

3. A statutory, or common law, choice of law rule which selects the substantive law which will govern a personal injury claim, or a statutory provision modifying a common law personal injury tort, may define the claims to which it applies by reference to the cause of action or the claim for relief.

4. A rule which selects claims ‘in respect of’ an event,[1] conduct,[2] consequence[3] or circumstance[4] is of the first kind.  It selects a cause, or causes, of action, an element of which is the prescribed event, conduct, consequence or circumstance, irrespective of the identity of the person injured or the nature of his or her injury.

   [1]     For example, a road, industrial or aviation accident.

   [2]     For example, engaging in construction, a professional practice or making a communication.

   [3]     For example, an injury to, or death of, a member of a particular class of persons.

   [4]     For example, being in a certain place.

5. A rule of the second kind applies to any cause of action in which the claim for relief is for damages for an injury of the kind specified. 

6. Section 58AA of the Workers Rehabilitation and Compensation Act 1986 (the WRC Act) is a rule of the second kind because it expressly selects those claims which are for ‘damages in respect of [the worker’s] injury’. That is to say, it is the claim for damages on the one hand, and the worker’s injury on the other, which must be relevantly connected, in that the damages claimed must be measured by reference to that injury.

7. A claim for damages for psychological shock suffered by a third person, who is not a worker, is not a claim for damages in respect of the worker’s injury (whether the injury is death or the bodily harm which led to death).  However, a claim for psychological shock by a third person is a claim in respect of the worker’s injury or death because the worker’s injury or death, and the apprehension of it, is a relevant consequence on which the employer’s liability to the third person is founded. In order to construe s 58AA to apply the substantive law of New South Wales to the appellant’s psychological shock claim, it is necessary to strike from s 58AA of the WRC Act the words ‘for damages’ as follows: ‘a claim for damages in respect of that injury.’  Workers compensation legislation historically has been confined to the personal injuries suffered by a worker.  It is difficult, therefore, to see how the word ‘damages’ can be treated as mere surplusage.

8. On the ordinary meaning of s 58AA, and unaided by authority, I would reject the construction urged by the respondent. However, it is necessary to consider the two competing High Court authorities relied on by the parties, which have considered broadly similar questions.

9. The question in issue in Workers’ Compensation Board (Qld) v Technical Products Pty Ltd (Technical Products),[5] was whether s 9A of the Workers’ Compensation Act 1916 (Qld) (the Queensland Act) required a reduction of an award of damages made to the wife of a seriously injured worker for psychological shock.  Section 9A(1)(a) provided that ‘where an injury entitling a worker to compensation from the [Fund] also created an independent legal liability in the employer to pay damages in respect of that injury, the damages payable by the employer were reduced by the compensation payable from the Fund’.  Section 9A(1)(b) provided that the damages, so reduced, were payable out of the Fund to the worker or his dependents.  The ‘Fund’ referred to in s 9 of the Queensland Act comprised the insurance premiums paid by employers.  Section 8(1) of the Queensland Act required employers to insure with the Workers’ Compensation Board (the Board):

   Every employer shall insure himself and keep himself insured with the Board against all sums for which, in respect of injury to any worker employed by him, he may become legally liable.  …

   [5] (1988) 165 CLR 642.

10. It had been decided in McDowell v Baker (McDowell)[6] that s 9A of the Queensland Act required that compensation paid to a dependant must be deducted from damages awarded to her in a Lord Campbell’s Act claim (a dependency claim).  Section 3(4) of the Queensland Act provided that a reference to an injured worker included a deceased worker’s legal personal representative.  Moreover, there was a line of authority which has held that the phrase ‘damages in respect of personal injury’, in several statutory contexts, included a dependency claim.

    [6] (1979) 144 CLR 413.

11. In McDowell, Aickin J explained why both a worker’s claim for damages for personal injury and a dependency claim were claims for damages in respect of the worker’s injury as follows:[7]

    In my opinion the section is not directed to causes of action but to the simpler conception of liability for a compensable injury, that is to say, all liabilities which may arise therefrom.  It uses general language when it speaks of “the amount of such damages which the employer is liable to pay”, thus concentrating on the liability of the employer to pay otherwise than under the Act, and not upon the recipient of the payment. Circumstances “creating ... independently of this Act, a legal liability in the employer to pay damages in respect of that injury ...” may be either negligence or breach of a relevant statutory duty, each giving rise to a liability to pay damages. The damages may be payable to the worker or to his dependants, depending on the circumstances, and I can see nothing in the language or the apparent policy of the section to suggest that it is confined to damages payable to the worker. Both those damages and damages payable to dependants under Lord Campbell’s Act are properly described as “in respect of that injury”.

    It is true that the worker had a cause of action based on the common law and his dependants had, on his death, one based on a statute, but each arose out of the same “injury”. That injury was of the kind described in s. 8 (1) and was the foundation of both his claims and his dependants claims, whether for compensation or for damages.

    The word “liability” and the phrase “legal liability” are both very general expressions which take their precise meaning and application from their context and the purpose of the legislation, as the observations of Barwick C.J. in Tickle Industries Pty. Ltd. v. Hann[8] show. Here it seems to me that the purpose of s. 9A is to extend the provision against “double recovery” beyond the area already contained in s. 16 and cll. 24 and 24A and in that context the purpose would be defeated if “legal liability” were construed as referring only to a specific cause of action available only to the worker himself.

    (Citation in original)

    [7] (1979) 144 CLR 413 at 427-428 (Aickin J).

    [8] (1974) 130 CLR 321, at pp. 330-331.

12. Justice Aickin also observed that dependency claims were so well known as to not require any further elaboration within s 9A of the Queensland Act.

13. In Technical Products, Wilson and Gaudron JJ thought it a ‘strange’ construction of s 9A of the Queensland Act to include within it damages awarded to a worker’s wife, for psychological shock, which were assessed by reference to her injury, and not by reference to her husband’s injuries.  Wilson and Gaudron JJ observed that ‘the primary meaning of the phrase would describe the damages flowing directly to the worker or his dependents from the injury which he had suffered in the course of his employment.’[9]  Some care is required in understanding the phrase ‘damages flowing directly to the worker.’  Strictly, damages are awarded by a Court for the injury and loss suffered by a claimant in a personal injury action.  In speaking of ‘damages flowing directly to the worker … from the injury which he had suffered’, I respectfully take their Honours to mean an award of damages assessed by reference to the worker’s injury. 

    [9]     Workers’ Compensation Board (Qld) v Technical Products Pty Ltd (1988) 165 CLR 642 at 646 Wilson and Gaudron JJ).

14. The appellant/employer’s submission in Technical Products was that, notwithstanding the natural meaning of s 9A of the Queensland Act, it should be construed consistently with the wider obligation imposed by s 8(1) to insure against liability ‘in respect of injury to any worker’, and not merely to insure against a liability to pay damages in respect of the injury suffered by the worker.  It submitted that the purpose of s 8(1) was to benefit all persons, and not just workers, who may have a claim for damages against an employer in respect of injury to a worker, by providing a fund out of which those damages can be paid.  Wilson and Gaudron JJ rejected that submission for two reasons.  First, it was not the traditional role of workers’ compensation statutes to ‘protect’ a plaintiff who may not bear any relation whatever to a worker.  Secondly, their Honours referred to the absence of any statutory provision regulating, such as by the giving of notice, claims by non-workers.  Accordingly, their Honours favoured a narrower construction of s 8(1)(b) consonant with the meaning of the words ‘damages in respect of that injury’ appearing in s 9A. 

15. Deane, Dawson and Toohey JJ contrasted the wife’s claim with a dependency claim.  Their Honours, like Gibbs CJ in McDowell,[10] considered that the reference to dependants in s 9A(b) of the Queensland Act strongly indicated that it applied to dependency claims, even though the correlation between the assessment of damages for the death of a worker, at the suit of the worker’s estate, and a dependency claim, was imperfect.  The plurality also relied on the extended meaning of an injury to a worker in s 3(4) of the Queensland Act. 

    [10] (1979) 144 CLR 413 at 419.

16. There is a material distinction between s 35 of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) (the Civil Aviation Act) considered in South West Helicopters Pty Ltd v Stephenson (South West Helicopters)[11] on the one hand, and s 9A of the Queensland Act and s 58AA of the WRC Act on the other. Section 28 of the Civil Aviation Act imposes a statutory liability on carriers ‘for damage sustained by reason of the death of the passenger or any bodily injury suffered by the passenger resulting from an accident’. It should immediately be noticed that damage in s 28 is used in the sense of injury or loss and not as the monetary relief awarded by a court for that injury. Subsequent provisions of the Civil Aviation Act limit the liability to fixed monetary amounts and impose time limits for bringing the statutory action.

    [11] (2017) 98 NSWLR 1

17. Section 35 of the Civil Aviation Act applies ‘in relation to liability imposed by this Part on a carrier in respect of the death of a passenger (including the injury that resulted in the death)’. Section 35(2) of the Civil Aviation Act then extinguishes any liability in respect of the death of a passenger, other than that imposed by s 28, by providing that liability under Part 4 of the Civil Aviation Act ‘is in substitution for any [other] civil liability of the carrier … in respect of the death of the passenger or in respect of the injury that has resulted in the death of the passenger’.

18. Section 36 of the Civil Aviation Act applies to liability in respect of personal injury suffered by a passenger. It too provides that the liability imposed by s 28 of the Civil Aviation Act ‘is in substitution for’ any other civil liability and thereby extinguishes all such causes of action.

19. The Court of Appeal of New South Wales held in South West Helicopters that a wife’s common law claim for psychological shock caused on hearing of the death of her husband in a plane crash was extinguished by s 35(2). Basten JA distinguished the decision in South Pacific Air Motive Pty Ltd v Magnus (Magnus)[12] in which it was held that s 36 of the Civil Aviation Act did not extinguish a common law claim for psychological shock brought by parents who saw the plane, in which their child was a passenger, crash off Botany Bay. Basten JA in South West Helicopters, made the point that the parents’ cause of action did not depend on whether or not any passenger had in fact suffered any injury because the shock was caused by seeing the plane crash.  However, his Honour acknowledged that the claim, and the reasoning of the Court in Magnus, proceeded on the basis that it was a claim in respect of the injury suffered by the child.

    [12] (1998) 87 FCR 301.

20. In reaching his conclusion in Magnus, Sackville J considered s 35 of the Civil Aviation Act because of a submission by the carrier that s 35 precluded psychological shock claims by third persons in respect of the death of a passenger, and that s 36 should be construed to the same effect. Sackville J accepted that s 35 barred claims for solatium, but rejected the contention that it also precluded psychological shock claims by non‑passengers. Sackville J found support for that construction in s 35(8), which provides that in awarding damages the Court is not limited to the financial loss resulting from the death of the passenger. Basten JA explained that Sackville J’s focus on s 35(8) of the Civil Aviation Act was mistaken because it failed to account for authorities in the United States and the United Kingdom which excluded all claims for pure mental harm from the scope of the International Convention for the Unification of Certain Rules Relating to International Carriage by Air 1929 (the Convention), but which also held that the Convention extinguished all such claims under other laws.

21. Basten JA continued, drawing a distinction between ss 35 and 36 of the Civil Aviation Act and between that Act and the Queensland Act:[13]

    [133]In dealing with the expression “in respect of”, Sackville J referred to the judgment of the High Court in Workers’ Compensation Board of Queensland v Technical Products Pty Ltd dealing with the claim by a wife in respect of the consequences of injury to her husband. Deane, Dawson and Toohey JJ stated: 

    “The phrase ‘damages in respect of that injury’ in s 8(1)(b) [of the Workers’ Compensation Act 1916 (Qld)] is clearly a reference to ‘damages in respect of injury to a worker’. The natural meaning of the expression is, therefore, damages payable to a worker and assessed by reference to his injury. So construed, the expression would exclude damages for nervous shock to a person other than a worker, not only because such damages are payable to a person other than the worker, but also because the damages are measured by the extent of the nervous shock and its consequences and not by the extent of the injury causing the nervous shock and its consequences … .”

    [134]That reasoning may be relevant to the liability referred to in s 36 which is stated to be “in respect of personal injury suffered by a passenger.” However, it did not follow (nor did Sackville J suggest that it did) that the same reasoning applied to liability “in respect of the death of the passenger” in s 35(2). It is clear that s 35 envisages that the person for whose benefit the liability is enforced is not the deceased person and, further, the measure of the benefit to the other person is not measured by reference to the loss suffered by the passenger.

    [135]The principle applied by both sets of reasons in Workers’ Compensation Board is that, in construing the phrase “in respect of”, close attention must be paid to the statutory context. Section 8(1) of the Workers’ Compensation Act 1916 (Qld) imposed on every employer a legal liability to pay compensation to a worker and to insure against its liability to pay compensation “in respect of injury to any worker” and against any liability to pay damages “in respect of that injury”. The court held that the natural and ordinary meaning of the latter requirement was to insure against any liability to pay damages to the worker (or the worker’s dependants). Cases adopting a broader reading of similar language were distinguished as depending, in one case “entirely upon the particular provisions of the legislation in question”, and in another “upon a specific clause in the policy”. The joint reasons of Wilson and Gaudron JJ also relied on the structure of the Act which, in contrast to its provisions with respect to payments to the worker, had no procedural provisions with respect to claims by a third party. In relation to the Commonwealth Carriers’ Liability Act, such reasoning can only apply if s 35 and s 36 have the same effect (despite differences in language), if they are read without reference to the context provided by the Convention and if their role in the statutory scheme is ignored. The reasoning is not applicable.

    (Citations omitted; emphasis added)

    [13]   South West Helicopters Pty Ltd v Stephenson (2017) 98 NSWLR 1 at [133]-[135].

1. The distinction made in the underlined first sentence of [134], between s 35 and s 36 of the Civil Aviation Act, can be made, with greater force, as between s 35 of the Civil Aviation Act and s 58AA of the WRC Act.

2. Basten JA concluded that s 35 of the Civil Aviation Act therefore precluded all liability by an airline ‘in respect of the death of a passenger’, including claims by third parties for psychological shock.

3. The decision of the Court of Appeal of New South Wales was affirmed by the High Court in Parkes Shire Council v South West Helicopters Pty Ltd.[14]Kiefel CJ, Bell, Keane and Edelman JJ explained the error in the reasoning of Sackville J in Magnus as follows:[15]

   [26]Sackville J acknowledged that the circumstance that the duty of care owed by a carrier to a non-passenger not to expose him or her to a risk of psychiatric harm is independent of the carrier’s duty to the passenger “may not be a major consideration in the interpretation of the Warsaw Convention”. Indeed, in 1929 such an independent duty of care was still in very early stages of development in England and Australia. Nevertheless, Sackville J proceeded to focus upon the legal basis under domestic law for the claim, rather than upon the logically anterior question posed by the text of the CACL Act, which was whether the liability asserted by the plaintiff was “in respect of the death of the passenger”. The ingredients of a claim for damages under domestic law were relevant only if a claim under domestic law had not been excluded by s 35(2) of the CACL Act. In effect, Sackville J must be taken to have read s 35(2) as if it spoke only of a liability “for the death of the passenger”.

   (Citations omitted)

   [14] (2019) 266 CLR 212.

   [15]   Parkes Shire Council v South West Helicopters Pty Ltd (2019) 266 CLR 212 at [26].

4. The reasons of the plurality focus on the text of s 35 of the Civil Aviation Act, making the point that the connecting phrase ‘in respect of’ is wider than the phrase ‘for the death of the passenger’. However, that reasoning cannot be applied directly to s 58AA(1)(a) of the WRC Act, which speaks of ‘damages in respect of [the worker’s] injury’.

5. Their Honours continued:[16]

   [32]The reasoning of Basten JA is to be preferred. As a matter of the ordinary and natural meaning of s 35(2) of the CACL Act, the Stephensons’ claims asserted the civil liability of the respondent in respect of the death of a passenger. There was an immediate and direct relationship between the asserted liability of the carrier and the death of the passenger.

   [16]   Parkes Shire Council v South West Helicopters Pty Ltd (2019) 266 CLR 212 at [32].

6. The observation of the plurality about the ordinary and natural meaning of s 35(2) of the Civil Aviation Act may be contrasted with the same observation made by Wilson and Gaudron JJ in Technical Products about the ordinary meaning of the text of s 9A of the Queensland Act.  The different conclusions are not inconsistent, but arise out of the different language used.  Section 9A operates on claims for damages in respect of the worker’s injury or death, and s 35 on ‘liability … in respect of the death of a passenger.’

7. In Parkes Shire Council v South West Helicopters Pty Ltd Gordon J also held that s 35(2) extinguished a claim for psychological shocks for the following reasons:[17]

   [17] (2019) 266 CLR 212 at [94]-[100].

   [94]Section 35(2) states that the liability in s 28 is in substitution for any civil liability of the carrier under any other law in respect of the death of the passenger. The phrase “in respect of” is a phrase of the widest import. In its terms, s 35(2) refers to, and requires there to be, some discernible and rational link or connection between the two matters identified: the basis of the liability – carriage by air – and the death of the passenger. Liability, as has been seen, is event-based.

   [95]Section 35(2) does not expressly address who may have sustained the damage. That is left to s 35(3)-(10). For example, it is apparent that s 35(2) is not limited to damage sustained by the deceased passenger: s 35(3) expressly provides that “the liability is enforceable for the benefit of such of the members of the passenger’s family as sustained damage by reason of his death” (emphasis added).

   [96]Moreover, “damage” is not defined in the Carriers’ Liability Act (Cth), the Carriers’ Liability Act (NSW) or the Conventions. And “damage” cannot be limited to economic or financial loss. Not only is the word “damage” used in s 28 in relation to both the death of a passenger and the personal injury of a passenger, but s 35(8) provides that “[i]n awarding damages, the court … is not limited to the financial loss resulting from the death of the passenger”.

   [97]The question which then arises is the manner in which Australia has implemented the second part of Art 24(2). As has been seen, s 35(3)-(10) of the Carriers’ Liability Act (Cth) address some of those questions. In other respects, the applicable law is addressed by the States.

   [98]Thus, given that the connection sought to be made is between the civil liability of the carrier and, in this case, the death of the passenger, the liabilities caught by s 35(2) are intended to, and do, extend to liabilities to non-passengers including a claim by them under the Compensation to Relatives Act, for loss of consortium and for solatium. In addition, a claim by an employer for loss of an employee’s services, a Lord Campbell’s Act claim, and a claim for nervous shock suffered on learning of the death of the passenger under the Civil Liability Act would fall within s 35(2), with the central element in each claim being the death of the passenger.

   [99]That is, like its counterpart in Art 24(1) from which it is drawn, the field of exclusivity in s 35(2) is greater than the scope of liability under s 28 (and its counterpart, Art 17).

   [100]That construction of s 35(2) is reinforced by other sections in Pt IV of the Carriers’ Liability Act (Cth). Section 31 contains a cap on liability, in respect of each passenger, by reason of the injury or death of that passenger from an accident; s 32 contains a prohibition on carriers contracting out or seeking to reduce that cap; s 33 addresses the liability of servants and agents of a carrier and, where that servant or agent proves that they acted within the scope of their employment and authority, provides that the servant or agent is entitled to avail themselves of the cap; and s 34 contains a limitation on the period in which an action can be brought against a carrier.

   (Citations omitted; emphasis in original)

8. Paragraphs [95] and [96] emphasise the absence of any limitation on who has sustained the damage flowing from the death of a passenger. In contrast, s 58AA of the WRC Act does limit the actions to which it applies to claims in respect of an injury to a worker.

9. Section 58AA applies the substantive law of the State in which there is a statutory entitlement to workers compensation in respect of an injury, to ‘a claim for damages in respect of the [same] injury’. It does not provide that the substantive law of that State governs all liability in respect of that injury. The claim is identified in subparagraph (a) by reference to the relief it claims, namely damages in respect of, that is, measured by reference to, the loss flowing from the injury suffered by the worker.

10. The text and context of s 58AA of the WRC Act is much more strongly analogous to s 9A of the Queensland Act than s 35 of the Civil Aviation Act. I would construe it consistently with the former provision and hold that it does not apply the law of another State to claims for the psychological shock of a third party on the hearing of the death of a worker.

11. After the hearing of this appeal, at the invitation of the Court, the parties provided an agreed schedule of legislative provisions regulating or restricting personal injury claims which were extant in the period over which the States and Territories adopted a uniform approach to the choice of governing law for personal injury actions brought to recover damages for work injuries. The schedule is attached as an appendix to my reasons at the end of this judgment. Each jurisdiction enacted a choice of law provision in similar terms to s 58AA of the WRC Act.

12. The legislation of each jurisdiction made detailed provision limiting common law claims for work injuries but more lightly regulated claims brought by dependents, and dealt with such claims in diverse ways.  For example, the Workers Compensation Act 1951 (ACT) did not limit them but instead required a claimant to pay the compensating authority an amount to reimburse it for the compensation paid to dependents.[18] Notably, s 151P of the Workers Compensation Act 1987 No 70 (NSW) appears to be the only provision which expressly dealt with claims in respect of psychiatric injury suffered by a person other than a worker.

    [18]   Workers Compensation Act 1951 (ACT) ss 184-185.

13. 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

14. I would join in the orders proposed by Stanley J. 

    STANLEY J:

    Introduction

15. 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. 

16. 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

17. 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).

18. 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.

19. 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).

20. 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.

21. At the time of the worker’s death; the appellant’s psychiatric injury; and the institution of the proceedings claiming damages for that injury; the repealed Act was operative.[19] The magistrate held that s 58AA dictated that the substantive law applicable to the appellant’s claim for damages for nervous shock was the law of New South Wales. The magistrate reasoned that the appellant’s claim was clearly a claim for damages for pure mental harm which arose wholly from nervous shock in connection with the death of a worker. It was the death of the appellant’s son which gave rise to her entitlement to the death benefit prescribed by s 25 of the NSW Act. 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 cause of action to the death benefit claim, and the lex loci was different, it still fell within the category of claim contemplated by s 58AA of the repealed Act and s 151AD of the NSW Act.

    [19]   The relevant provision of the Return to Work Act 2014 (SA) repealed the Workers Rehabilitation and Compensation Act 1986 (SA) with effect from 1 July 2015.

    The statutory scheme

22. Section 58AA is a choice of law provision. Section 58AD of the repealed Act provided that for the purposes of subdivision 2 of Division 9 of Part 4 (which includes s 58AA) of the repealed Act a claim for damages in respect of death resulting from an injury is to be considered as a claim for damages in respect of the injury. Accordingly, a claim for damages in respect of death resulting from an injury is a claim for damages in respect of the injury for the purposes of s 58AA.

23. The appeal gives rise to a question of statutory construction. 

24. Statutory construction is the process by which meaning is attributed to statutory text.  Where the meaning of the text is in doubt it involves constructional choice.[20]  The statutory text must be considered from the outset in context, and attribution of meaning to the text in context must be guided, so far as possible, by statutory purpose on the understanding that a legislature ordinarily intends to pursue its purposes by coherent means.[21]  Where the text read in context permits of more than one potential meaning, the choice between those meanings may ultimately turn on an evaluation of the relative coherence of each with the scheme of the statute and its identified objects or policies.[22]

    [20]   SZTAL v Minister for Immigration and Border Protection [2017] HCA 34 at [38], (2017) 262 CLR 362 at 375.

    [21]   SAS Trustee Corporation v Miles [2018] HCA 55 at [41], (2018) 265 CLR 137 at 157.

    [22]   SAS Trustee Corporation v Miles [2018] HCA 55 at [20], (2018) 265 CLR 137 at 149.

25. At issue is whether the appellant’s claim is a claim for damages in respect of her son’s death within the meaning of s 58AA(1)(a) of the repealed Act. This does not admit of an easy answer. At issue is a constructional choice.

26. The constructional choice is whether a claim for damages for pure mental harm suffered by a person other than a worker, by reason of ascertaining that a worker has suffered injury or death, is or is not a claim for damages in respect of the worker’s injury or death. 

27. 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

28. 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.

29. 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”. 

30. 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.

31. 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.

1. Their Honours adopted a narrower construction of s 8 consonant with the primary meaning of the words “damages in respect of that injury”.  They said:[25]

   The material sections of the Act are concerned with the protection of workers and their dependants in respect of injury suffered by the worker in the course of his employment. It is to that end that s. 8(1) obliges every employer to insure and to keep himself insured with the Board against all sums for which he may become liable to pay to the worker or his dependants as compensation or damages. It would be alien to that purpose for an employer to be obliged to insure with the Board against liability to any person at all for negligence in respect of an injury suffered by a worker. Such an obligation would not necessarily serve to protect the worker or his dependants in any way at all. In these circumstances, the relevant phrase in s. 8(1) should bear its primary meaning.

   [25] [1988] HCA 49, (1988) 165 CLR 642 at 652.

2. In their joint reasons Deane, Dawson and Toohey JJ considered the terms of s 8.  They said:[26]

   Undoubtedly the words "in respect of" have a wide meaning, although it is going somewhat too far to say, as did Mann C.J. in Trustees Executors & Agency Co. Ltd. v. Reilly, that "they have the widest possible meaning of any expression intended to convey some connection or relation between the two subject-matters to which the words refer". The phrase gathers meaning from the context in which it appears and it is that context which will determine the matters to which it extends. It was for this reason that reference was made by the Board to various provisions of the Act said to demonstrate that its object is to provide for the payment of benefits to injured workers and their dependants. That was not really disputed by the employer. Plainly that object is to be found in s. 9(1) which provides that "A worker who has received an injury arising out of or in the course of his employment (and, in the case of the death of the worker, his dependants) shall, subject to this Act, receive out of the Workers' Compensation Fund compensation in accordance with this Act". In addition to the reference to dependants in s. 9(1), s. 3(4) provides that "Any reference to a worker who has been injured, where the worker is dead, includes a reference to his legal personal representative or to his dependants or other person to whom or for whose benefit compensation is payable". Under s. 3(1) injury means "personal injury arising out of or in the course of employment ...".

   …

   But references in the Act to damages in respect of injury to a worker have an extended meaning because of s. 3(4), which requires any reference to a worker who has been injured to be read as including a reference to his dependants: see McDowell v. Baker; Medaris v. Lars Halvorsen & Sons Pty. Ltd. Thus it may be accepted that s. 9A and, for that matter, s. 8(1), extend in their operation to damages payable to dependants, without accepting the broader proposition that damages in respect of injury to a worker include damages assessed by reference to some other injury and payable to some other person altogether.

   The phrase "damages in respect of that injury" in s. 8(1)(b) is clearly a reference to "damages in respect of injury to a worker". The natural meaning of the expression is, therefore, damages payable to a worker and assessed by reference to his injury. So construed, the expression would exclude damages for nervous shock to a person other than a worker, not only because such damages are payable to a person other than the worker, but also because the damages are measured by the extent of the nervous shock and its consequences and not by the extent of the injury causing the nervous shock and its consequences: see State Government Insurance Office (Q.) v. Crittenden, per Windeyer J.

   It was conceded by the employer that the reference to "damages in respect of that injury" in s. 8(1)(b) is apt to cover damages payable to a worker and assessed by reference to his injury, but it was said that it is also apt to cover damages payable to another and assessed by reference to injury to that other and should be read as covering both categories. But it seems to us that if the expression naturally refers to the first category of damages, as it clearly does, it cannot easily be read at the same time as a reference to the second. …

   The most that can be drawn from these decisions dealing with differently worded provisions is that the use of the phrase "in respect of" does not, of itself, extend the meaning of an expression such as "damages in respect of injury to any worker" so as to include damages payable to a person other than the worker. The employer was unable to point to anything in this case which would justify giving an extended meaning to the expression save for s. 4 of the Act, which authorizes the Board to carry on the business of accident insurance. That, of itself, is insufficient to lead to the conclusion sought by the employer. The general context of ss. 8(1) and 9A is that of an Act with the object of providing benefits to injured workers and their dependants. There is nothing in the scope of its provisions which would warrant giving the words "damages in respect of that injury" in s. 8(l)(b) any meaning other than that which they naturally bear.

   [26] [1988] HCA 49, (1988) 165 CLR 642 at 653-656.

3. The respondent contends that as a matter of textual analysis the claim in this case should be characterised as a claim for damages in respect of the worker’s death.  The respondent submits that the expression “in respect of” is of considerable breadth, although this always depends on context.  It is on the basis of context that it seeks to distinguish the High Court’s reasoning in Workers’ Compensation Board v Technical Products.  It submits that Workers’ Compensation Board concerned whether or not the statutory workers compensation policy provided indemnity to an employer for a claim for nervous shock. The plaintiff who brought the action claiming damages for nervous shock had no entitlement to compensation under the Queensland Act. There was no provision like s 58AA or s 58AD of the repealed Act. Further, s 8(1) of the Queensland Act was directed to the liability “to pay the compensation which the Act prescribed”. I do not accept this submission.

4. Workers’ Compensation Board was considered by the New South Wales Court of Appeal in South West Helicopters Pty Ltd v Stephenson.[27]  South West Helicopters was concerned with, inter alia, the provisions of the Civil Aviation (Carriers Liability) Act 1959 (Cth) (CACL Act) which enacted into Australian domestic law provisions of the Warsaw Convention and the Montreal Convention in relation to the liability for damage sustained in the event of death or wounding of airline passengers. Section 35(2) provided that “[s]ubject to s 37, the liability under this Part is in substitution for any civil liability of the carrier under any other law in respect of the death of the passenger or in respect of the injury that has resulted in the death of the passenger”. Section 35(3) provided that that liability “is enforceable for the benefit of such of the members of the passenger’s family as sustained damage by reason of his death”. Section 36 is the counterpart provision to section 35 which deals with personal injury rather than death. Section 37 relevantly provided that “[n]othing in this Part shall be deemed to exclude any liability of a carrier: … (b) to pay contribution to a tort-feasor who is liable in respect of the death of, or injury to, the passenger”. Basten JA, with whom Payne JA agreed, held that s 35 envisages that the person for whose benefit the liability is enforced is not the deceased person and the measure of the benefit to the other person is not measured by reference to the loss suffered by the passenger.[28]  Basten JA said:[29]

   The principle applied by both sets of reasons in Workers’ Compensation Board is that, in construing the phrase “in respect of”, close attention must be paid to the statutory context. Section 8(1) of the Workers’ Compensation Act 1916 (Qld) imposed on every employer a legal liability to pay compensation to a worker and to insure against its liability to pay compensation “in respect of injury to any worker” and against any liability to pay damages “in respect of that injury”. The court held that the natural and ordinary meaning of the latter requirement was to insure against any liability to pay damages to the worker (or the worker’s dependants). Cases adopting a broader reading of similar language were distinguished as depending, in one case “entirely upon the particular provisions of the legislation in question”, and in another “upon a specific clause in the policy”. The joint reasons of Wilson and Gaudron JJ also relied on the structure of the Act which, in contrast to its provisions with respect to payments to the worker, had no procedural provisions with respect to claims by a third party. In relation to the Commonwealth Carriers’ Liability Act, such reasoning can only apply if s 35 and s 36 have the same effect (despite differences in language), if they are read without reference to the context provided by the Convention and if their role in the statutory scheme is ignored. The reasoning is not applicable.

   [citations omitted]

   [27] [2017] NSWCA 312, (2017) 98 NSWLR 1.

   [28] [2017] NSWCA 312 at [134], (2017) NSWLR 1 at 37.

   [29] [2017] NSWCA 312 at [135], (2017) NSWLR 1 at 37.

5. The reasons of Basten JA were approved by the High Court on appeal in Parkes Shire Council v South West Helicopters Pty Ltd.[30]

   [30] [2019] HCA 14 at [32], (2019) 266 CLR 212 at 225.

6. While s 35(2) of the CACL Act excluded a claim for pure psychiatric harm, that resulted from the terms of that legislation which adopted the discrimen of liability in respect of the death of the passenger.  By contrast s 8 and s 9A of the Queensland Act, which adopted the discrimen of liability to pay damages in respect of the worker’s injury, did not exclude such a claim. 

7. A liability “in respect of the death of a passenger” is a wider concept than a liability to “pay damages in respect of a worker’s injury” (or death).  The former liability extends to a claim by a third person for nervous shock resulting from the death of a passenger.  That is so notwithstanding that the claim is made a person other than the passenger and that the measure of damages is assessed by that other person’s loss and damage, not the passenger’s loss and damage.  The latter liability is more confined.  It is limited to a liability to pay damages for the injury (or death) of a worker, not the injury (or death) of a third person.  While the latter liability can extend to a Lord Campbell’s Act claim, that is a claim for damages assessed by reference to the loss and damage to a third person dependent upon the earnings of the deceased worker.  The nature of the relationship between the death of the worker and the award of damages makes this a liability in respect of the death of the worker. 

8. For these reasons, I do not accept the respondent’s submission that the distinction made by the appellant between a Lord Campbell’s Act derivative action and an action claiming damages for nervous shock should be rejected. While s 58AA, as extended by s 58AD, does not make that distinction, that is not decisive. The text of s 58AA more closely resembles the language of s 8 and s 9A, considered by the High Court in Workers’ Compensation Board, than s 35(2) considered in South West Helicopters.  Accordingly, 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.

9. The respondent submits that the evident intent and effect of s 58AA was to apply the substantive law of New South Wales, including any provisions limiting, abolishing or extending rights in such actions, to a claim brought by a person who has an entitlement to compensation under the New South Wales Act. Further, it should not be accepted that either the NSW Act or the repealed Act simply compensated relatives for loss which might be recovered in a Lord Campbell’s Act claim. The respondent submits that the purpose of s 58AA is to ensure that common law damages claims and statutory compensation claims arising out of a work-related injury are both able to be dealt with under the law of the same jurisdiction. This aids the purposes of the national scheme known as the TOSOC provisions,[31] of which s 58AA is part, which implement a uniform framework in workers compensation choice of law rules. However, whether the legislation achieves that purpose in a way which deprives the appellant of an entitlement to damages for pure psychiatric harm depends on the text of the legislation and not from an assumption about the desired or desirable reach or operation of the relevant statutory provision.[32]  In my view it does not.

   [31]   TOSOC is an acronym for one Territory Or State Of Connection. 

   [32]   Certain Lloyd’s Underwriters v Cross [2012] HCA 56 at [23]-[26], (2012) 248 CLR 378 at 388-390.

10. For the reasons explained by the Chief Justice, the effect of s 58AA is to apply the substantive law of the State in which there is a statutory entitlement to workers’ compensation in respect of an injury to a worker, to a claim for damages in respect of the same injury. It does not provide that the substantive law of that State governs all liability in respect of that 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). This conclusion flows from the text of s 58AA considered in its context. The authorities considered above demonstrate that different conclusions are a consequence of textual differences. As the Chief Justice has observed, the text and context of s 58AA is much more strongly analogous to s 9A of the Queensland Act than s 35 of the CACL Act. Accordingly, I agree that s 58AA does not apply the law of New South Wales to the appellant’s claim for damages for pure mental harm arising from mental or nervous shock in connection with the death of the worker. Upon the correct construction of s 58AA a claim for damages for pure mental harm suffered by a person other than a worker, by reason of ascertaining that a worker has suffered injury or death, is not a claim for damages in respect of the worker’s injury or death.

11. Since drafting my reasons, I have had the advantage of reading in draft the reasons of Doyle J.  I would also adopt those reasons.

    Conclusion

12. I would allow the appeal.  I would set aside the order entering judgment for the respondent and dismissing the appellant’s action.  I would hear the parties as to costs.   

13. DOYLE J: Section 58AA of the Workers Rehabilitation and Compensation Act 1986 (SA) provides a choice of law rule applicable to “a claim for damages in respect of the [worker’s] injury.” For the reasons given by Kourakis CJ and Stanley J, this rule does not extend to a claim for damages for nervous shock suffered by the appellant mother of the relevant worker.

14. While the words “in respect of” are often of wide import, in the context of the present statutory provision, and in particular by reason of those words being descriptive of the required connection between the damages claimed and the worker’s injury, I do not think that s 58AA should be read as extending to a claim for damages to be assessed by reference to the mother’s injury rather than the worker’s injury. While the mother’s claim might be said to be in respect of the worker’s injury, in the general sense that it is predicated upon that injury having occurred, I do not think that her claim is one for damages that are in respect of the worker’s injury.

15. To construe s 58AA in the manner contended for by the respondent would involve ignoring the words “for damages”; or, at the very least, treating the words “claim for damages” as a compendious description of the claim that does not connote any requirement that the damages sought in that claim be “in respect of” the worker’s injury. While such a construction is potentially open, I do not think it attaches appropriate weight to Parliament’s use of the words “for damages”. The better construction having regard to the text, context and purpose of the relevant provision is the one contended for by the appellant. For the reasons given by Kourakis CJ and Stanley J, this construction is also consistent with the reasons of the High Court in the Workers’ Compensation Board of Queensland v Technical Products Pty Ltd[33] and the New South Wales Court of Appeal in South West Helicopters Pty Ltd v Stephenson.[34]

    [33]   Workers’ Compensation Board of Queensland v Technical Products Pty Ltd (1988) 165 CLR 642.

    [34]   South West Helicopters Pty Ltd v Stephenson (2017) 98 NSWLR 1; upheld in the High Court in Parkes Shire Council v South West Helicopters Pty Ltd (2019) 266 CLR 212.

16. I would thus allow the appeal and join in the orders proposed by Stanley J.

    Appendix to the Chief Justice’s Reasons

    LEGEND

A = Provision operates by reference to the making of the claim or of an award of damages

B = Provision operates by reference to an employer's liability 

EXPLANATION OF DATES:

1.The National Model, relating to the choice of law provisions in respect of common law entitlements, was adopted at various times in each jurisdiction. The model was first adopted in Queensland on 1 July 2003 and was last adopted in South Australia on 1 January 2007.

2.The National Model, relating to choice of law of workers compensation entitlements, was adopted in each jurisdiction at the same time as the choice of law provisions relating to common law entitlements.

3.There are no provisions, equivalent to those which are under consideration in this matter in the Northern Territory. The Northern Territory adopted the National Model relating to choice of law of workers compensation entitlements on 26 April 2007.

Jurisdiction	Relevant Act	Date of Commencement of Uniform Model	Common Law
			Legend	Provisions as at first adoption (QLD) on 1 July 2003	Amendment Provisions between 1 July 2003 to last adoption (SA) on 1 January 2007
Queensland	Workers Compensation and Rehabilitation Act 2003 (QLD)	1 July 2003	A	ss 237, 270, 308 and 309.	Part 10, ss 308 - 308E[35]
ACT	Workers Compensation Act 1951 (ACT)	5 April 2004	B	s 185	s185[36]
Victoria	Accident Compensation Act 1985 (Vic)	26 August 2004	B A	Part IV Div 6B ss 129N - 129S ss134AA to 134AB	NIL
Tasmania	Workers Rehabilitation and Compensation Act 1988 (Tas)	17 December 2004	A	Part X Div 1 s 133 Part X Div 2 ss 138AA-138AD	ss 138AA and 138AB[37]
Western Australia	Workers' Compensation and Injury Management Act 1981	22 December 2004	A	s92 Part IV Division 2	Part IV, Div 2, Subdivision 3[38]
New South Wales	Workers Compensation Act 1987 (NSW)	1 January 2006	B	Part 5 Div 2 ss151E - 151O, 151U - 151V and 151AA to 151AC	NIL
South Australia	Workers Rehabilitation and Compensation Act 1986 (SA)	1 January 2007	B	s 54	NIL
Northern Territory	Return to Work Act 1986 (NT)(No 49 of 1986) (previously known as the "Workers Rehabilitation and Compensation Act 1986 (NT) (No 49 of 1986)")	Does not have any equivalent choice of law provisions for common law	A	s 52	NIL

[35]   Amendments pursuant to the Workers' Compensation and Rehabilitation and Other Acts Amendment Act 2004 (QLD) (45 of 2004).

[36]   Amendments pursuant to the Workers Compensation Amendment Act 2003 (No 2) (ACT) (49 of 2003) s25.

[37]   Amendments pursuant to the Workers Rehabilitation and Compensation Amendment (Miscellaneous) Act 2004 (Tas) (65 of 2004).

[38]   Introduced by the Workers' Compensation and Rehabilitation Amendment (Cross Border) Act 2004 (36 of 2004) (WA).