EIBHLIN Margaret Campbell as Administrator of the Estate of Colin Charles Campbell (Dec) v RGC Mineral Sands Ltd
[2001] WASCA 395
•11 DECEMBER 2001
EIBHLIN MARGARET CAMPBELL as Administrator of the Estate of COLIN CHARLES CAMPBELL (DEC) -v- RGC MINERAL SANDS LTD [2001] WASCA 395
| (2001) 25 WAR 322 | |||
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 395 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:33/2001 | 12 OCTOBER 2001 | |
| Coram: | MURRAY J TEMPLEMAN J EINFELD AJ | 11/12/01 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed Cross-appeal allowed | ||
| A | |||
| PDF Version |
| Parties: | EIBHLIN MARGARET CAMPBELL as administrator of the estate of COLIN CHARLES CAMPBELL (DEC) RGC MINERAL SANDS LTD |
Catchwords: | Practice and procedure Appeal and cross-appeal from judgment of District Court Whether s 93D of the Workers' Compensation Act and Rehabilitation Act 1981 (WA) operates to extinguish a common law cause of action following the death of the worker Whether the Law Reform (Miscellaneous Provisions) Act 1941 (WA) applies to preserve a common law cause of action aside from the Workers' Compensation statutory regime |
Legislation: | Law Reform (Miscellaneous Provisions) Act 1941 (WA), s 4 Workers' Compensation and Rehabilitation Act 1981 (WA), s 93D |
Case References: | Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297 Dimasi v ABB EPT Construction Pty Ltd (1995) 14 WAR 497 Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234 Bank Officials' Association (South Australian Branch) v The Savings Bank of South Australia (1923) 32 CLR 276 Barker v Edgar & Ors [1898] AC 748 Bishop of Gloucester v Cunnington [1943] 1 KB 101 Butler v Attorney-General (Victoria) (1961) 106 CLR 268 Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 Corporate Affairs Commission v Australian Central Credit Union (1985) 157 CLR 201 Ex Parte Cohen (1999) 21 WAR 158 Garnett v Bradley (1878) 3 App Cas 944 In Re Smith's Estate; Clements v Ward (1887) 35 Ch D 589 Jaksic v Cossar [1966] 2 NSWR 581 John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; 172 ALR 625 Lend Lease Employer Systems Ltd v Lydon [1998] WASCA 41 Maxwell v Murphy (1957) 96 CLR 261 Maybury v Plowman (1913) 16 CLR 468 Meggitt Overseas Ltd & Ors v Grdovic (1998) 43 NSWLR 527 Permanent Building Society (in liq) v Wheeler, unreported; SCt of WA; Library No 940146; 25 March 1994 Premiership Investments Pty Ltd & Anor v White Diamond Pty Ltd (1995) 61 FCR 178 R v Minister for Health; Ex parte Villiers [1936] 2 KB 29 Re Minister for Minerals and Energy; Ex parte Wingate Holdings Pty Ltd [1987] WAR 190 Seward v The Owner of the "Vera Cruz" (1884) 10 App Cas 59 Smith & Anor v Maloney (1998) 19 WAR 209 South Australia v Tanner & Ors (1989) 166 CLR 161 Stephenson v Human Rights & Equal Opportunity Commission & St Vincents Hospital Ltd (1996) 68 FCR 290 Tag Pacific Ltd & Anor McSweeney & Anor (1992) 106 ALR 651 The State of South Australia v Tanner & Ors (1989) 166 CLR 161 White v Brunton [1984] 1 QB 570 Willis v The Commonwealth (1946) 73 CLR 105 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : EIBHLIN MARGARET CAMPBELL as Administrator of the Estate of COLIN CHARLES CAMPBELL (DEC) -v- RGC MINERAL SANDS LTD [2001] WASCA 395 CORAM : MURRAY J
- TEMPLEMAN J
EINFELD AJ
- Appellant (Plaintiff)
AND
RGC MINERAL SANDS LTD
Respondent (Defendant)
Catchwords:
Practice and procedure - Appeal and cross-appeal from judgment of District Court - Whether s 93D of the Workers' Compensation Act and Rehabilitation Act 1981 (WA) operates to extinguish a common law cause of action following the death of the worker - Whether the Law Reform (Miscellaneous Provisions) Act 1941 (WA) applies to preserve a common law cause of action aside from the Workers' Compensation statutory regime
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Legislation:
Law Reform (Miscellaneous Provisions) Act 1941 (WA), s 4
Workers' Compensation and Rehabilitation Act 1981 (WA), s 93D
Result:
Appeal dismissed
Cross-appeal allowed
Category: A
Representation:
Counsel:
Appellant (Plaintiff) : Mr D H Solomon
Respondent (Defendant) : Mr P P McCann
Solicitors:
Appellant (Plaintiff) : Solomon Brothers
Respondent (Defendant) : Civitella Smith
Case(s) referred to in judgment(s):
Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297
Dimasi v ABB EPT Construction Pty Ltd (1995) 14 WAR 497
Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234
Case(s) also cited:
Bank Officials' Association (South Australian Branch) v The Savings Bank of South Australia (1923) 32 CLR 276
Barker v Edgar & Ors [1898] AC 748
Bishop of Gloucester v Cunnington [1943] 1 KB 101
Butler v Attorney-General (Victoria) (1961) 106 CLR 268
(Page 3)
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297
Corporate Affairs Commission v Australian Central Credit Union (1985) 157 CLR 201
Ex Parte Cohen (1999) 21 WAR 158
Garnett v Bradley (1878) 3 App Cas 944
In Re Smith's Estate; Clements v Ward (1887) 35 Ch D 589
Jaksic v Cossar [1966] 2 NSWR 581
John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; 172 ALR 625
Lend Lease Employer Systems Ltd v Lydon [1998] WASCA 41
Maxwell v Murphy (1957) 96 CLR 261
Maybury v Plowman (1913) 16 CLR 468
Meggitt Overseas Ltd & Ors v Grdovic (1998) 43 NSWLR 527
Permanent Building Society (in liq) v Wheeler, unreported; SCt of WA; Library No 940146; 25 March 1994
Premiership Investments Pty Ltd & Anor v White Diamond Pty Ltd (1995) 61 FCR 178
R v Minister for Health; Ex parte Villiers [1936] 2 KB 29
Re Minister for Minerals and Energy; Ex parte Wingate Holdings Pty Ltd [1987] WAR 190
Seward v The Owner of the "Vera Cruz" (1884) 10 App Cas 59
Smith & Anor v Maloney (1998) 19 WAR 209
South Australia v Tanner & Ors (1989) 166 CLR 161
Stephenson v Human Rights & Equal Opportunity Commission & St Vincents Hospital Ltd (1996) 68 FCR 290
Tag Pacific Ltd & Anor McSweeney & Anor (1992) 106 ALR 651
The State of South Australia v Tanner & Ors (1989) 166 CLR 161
White v Brunton [1984] 1 QB 570
Willis v The Commonwealth (1946) 73 CLR 105
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1 MURRAY J: In this matter I have had the advantage of reading in draft the reasons for decision to be delivered by Templeman J, with which I am in general agreement. I wish only to add some observations of my own.
2 I was not attracted to the proposition that the task of statutory interpretation in this case would be assisted by applying the Latin maxim generalia specialibus non derogant (general legislation will not derogate from a special enactment) rather than leges posteriores priores contrarias abrogant (a later statute will impliedly repeal a contrary earlier enactment). Such maxims may not be allowed to mask the essential nature of the task which is to accord to the statute the meaning which Parliament intended. Generally, that meaning will be discerned from the language used in the statute as a whole, reading the words in their ordinary and natural sense. As Mason and Wilson JJ said in Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297 at 320 - 321:
"The fundamental object of statutory construction in every case is to ascertain the legislative intention by reference to the language of the instrument viewed as a whole. But in performing that task the courts look to the operation of the statute according to its terms and to legitimate aids to its construction.
The rules, as D C Pearce says in Statutory Interpretation, p 14, are no more than rules of common sense, designed to achieve this object. They are not rules of law. If the Judge applies the literal rule it is because it gives emphasis to the factor which in the particular case he thinks is decisive. When he considers that the statute admits of no reasonable alternative construction it is because (a) the language is intractable or (b) although the language is not intractable, the operation of the statute, read literally, is not such as to indicate that it could not have been intended by the legislature.
On the other hand, when the Judge labels the operation of the statute as 'absurd', 'extraordinary', 'capricious', 'irrational' or 'obscure', he assigns a ground for concluding that the legislature could not have intended such an operation and that an alternative interpretation must be preferred. But the propriety of departing from the literal interpretation is not confined to situations described by these labels. It extends to any situation in which for good reason the operation of the statute on a literal
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- reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions.
Quite obviously questions of degree arise. If the choice is between two strongly competing interpretations, as we have said, the advantage may lie with that which produces the fairer and more convenient operation so long as it conforms to the legislative intention. If, however, one interpretation has a powerful advantage in ordinary meaning and grammatical sense, it will only be displaced if its operation is perceived to be unintended."
- A good example of the adoption of that approach with respect to the Workers' Compensation and Rehabilitation Amendment Act 1993 (WA) is a decision of the Full Court in Dimasi v ABB EPT Construction Pty Ltd (1995) 14 WAR 497.
3 That approach is sometimes put in other terms by reference to the Interpretation Act 1984 (WA), s 18:
"In the interpretation of a provision of a written law, a construction that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to a construction that would not promote that purpose or object."
- Further, under s 19, extrinsic material, including material of the kind detailed in the section, may be considered if it is capable of assisting in the ascertainment of the meaning of the enactment, particularly if the enactment is thought to be ambiguous or obscure or a literal reading of its terms in the statutory context leads to a result that is manifestly absurd or is unreasonable.
4 We were referred to such material with respect to the provisions of the Workers' Compensation and Rehabilitation Act 1981 in the form in which they were operative at the time relevant to this case. The provisions were inserted in the Act, coincidentally, by the Workers' Compensation and Rehabilitation Amendment Act 1993. We were provided with the Hansard of the Legislative Assembly for 21 September 1993, page 4233 and following, containing the Second Reading Speech of the Hon Minister for Labour Relations and the debate thereon. The Minister observed that a central policy of the amendments, in the respect relevant to this case, against the background of what were described as
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- "more equitable benefits for workers" under the workers' compensation system, was to restrict the access to common law damages to those workers who could prove not only negligence but also "significant damages". I derived no assistance from those or similar remarks made in more detail later in the Second Reading Speech and in the debate which followed.
5 The nature of this case has been generally and sufficiently described by Templeman J. The deceased worker's cause of action in negligence accrued when he sustained injuries in the course of his employment by the respondent in 1993 and 1994. He issued a writ out of the District Court on 16 November 1998 claiming damages for negligence, leave to do so having been obtained under the Workers' Compensation Act, s 93(4) and (5)(c), the Court having determined "that the worker is likely to have future pecuniary loss resulting from the disability of an amount that is at least equal to the prescribed amount".
6 I would adopt the concept of a cause of action derived from the judgment of Wilson J in Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234 at 245 where his Honour described a cause of action as:
"… simply the fact or combination of facts which gives rise to a right to sue. In an action for negligence, it consists of the wrongful act or omission and the consequent damage."
- Of course in that context the reference to "damage" refers to the personal injuries or disabilities, to compensate for which damages may be awarded by a court.
7 The order made substituting the appellant as the plaintiff in the action so commenced, upon Mr Campbell's death on 28 November 1998, reflects the operation of the Law Reform (Miscellaneous Provisions) Act 1941, s 4 by which the cause of action vested in the deceased survived for the benefit of his estate, subject only to some truncation of the damages recoverable for the benefit of the estate which, relative to this case, by s 4(2)(e):
"shall not include any damages for the loss of the capacity of that person to earn, or for the loss of future probable earnings of that person, during such time after his death as he would have survived, but for the act or omission which gives rise to the cause of action."
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8 In my opinion, the meaning and effect of that provision is clear. It is concerned to prevent the award of damages to the estate for the loss of earning capacity or future probable earnings for the years lost upon the death of the deceased as a result of the tort of the defendant, thereby avoiding a potential overlap between the damages which might be awarded to the estate on the pursuit of the cause of action originally vested in the deceased and damages for pecuniary loss resulting from the death of the deceased caused by the tort of the defendant for which his or her dependants may sue under the Fatal Accidents Act 1959 (WA). It is common ground in this case that the cause of the death of the deceased was unrelated to the conduct of the respondent for which Mr Campbell's action in negligence was originally brought.
9 The estate therefore retained under this provision the full capacity in respect of future economic loss to pursue the surviving cause of action to obtain an award of damages, limited under this head of damages simply by the fact of death without any enhancement by way of damages for the loss of Mr Campbell's expectation of life. To my mind the Miscellaneous Provisions Act is a general provision of a remedial kind concerned with the circumstances and form in which, after death, a cause of action which accrued during the life of the deceased will be preserved for the benefit of his or her estate.
10 It is against that background that one turns to the provisions of Div 2 of Pt IV of the Workers' Compensation Act which, in the form with which this case was concerned, are frankly directed to controlling the capacity to pursue an action at common law, not directly, but indirectly by restricting the capacity of common law courts to award damages where the action is brought against an employer of a worker who has suffered a disability within the meaning of the Act, for which compensation has been paid or is payable: s 93B and s 93C. Under those provisions and s 93D(1), damages for negligence or another tort of the worker's employer may only be awarded if the disability results in the death of the worker or is a serious disability as defined by s 93D(2) (particularly in this case par (b), having regard to the meaning given to the term "future pecuniary loss" under s 93A).
11 To my mind, as in the view of Templeman J, the cause of action which originally vested in the worker cannot be pursued by the estate simply because damages could not be awarded at all if negligence was established because at the time when that was to be done, the disability for which damages would be awarded would not in terms of the statute be a
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- serious disability as there could then be no future pecuniary loss, let alone loss at least equal to the prescribed amount.
12 That is not to give the later Act the effect of impliedly repealing the Miscellaneous Provisions Act. Both Acts may apply except that the conclusion seems to me also to be inescapable that the application of the Workers' Compensation Act effectively extinguishes the cause of action otherwise preserved by the Miscellaneous Provisions Act because in this particular case the Court would have no capacity to award damages at all.
13 That appears to me to be a result consistent with the policy and purpose of the relevant provisions of the Workers' Compensation Act. Whatever one may think of the merits of that policy, it seems to me that s 93D is concerned to give effect to the purpose of controlling compensation for work related injuries within the framework of the benefits provided under the Act, no doubt having regard to the insurance required to be effected against the employer's liability with respect to work related injuries. Only where the disability sustained by a worker arising out of or in the course of his or her employment itself results in death or where, because of the seriousness of the disability, the award of damages at common law within the limitations of the Act would be large, is the capacity to recover damages at common law preserved.
14 In this case the action falls within the adverse effects of that statutory purpose and I respectfully agree that it should be dismissed. The appeal should be dismissed, the cross-appeal allowed and there should be judgment in the action for the respondent against the appellant.
15 TEMPLEMAN J: The late Mr Colin Charles Campbell brought an action against his former employer - the present respondent - in which he claimed damages for a work-related injury said to have been caused by the employer's negligence.
16 Shortly after the action had been commenced, Mr Campbell died from causes unrelated to his injury. Mr Campbell's widow - the present appellant - was then appointed the administratrix of his estate and was substituted as the plaintiff in the action.
17 In those circumstances the respondent took a preliminary point: that s 93D of the Workers' Compensation and Rehabilitation Act 1981 had operated to extinguish Mr Campbell's cause of action on his death.
18 The preliminary issue was tried by a Judge of the District Court. He held that the cause of action had survived for the benefit of Mr Campbell's
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- estate, but that the estate could not prove damages to the extent necessary in the statutory regime for the claim to succeed. That being so, the Judge concluded, the appropriate course was to stay the action permanently.
19 The appellant appeals from that decision. The respondent cross-appeals: it contends that the claim should have been dismissed and judgment given in its favour. Alternatively, the respondent contends, the action should be set down for trial and final determination.
20 When Mr Campbell sought to commence his action, the relevant parts of s 93D (which has since been repealed) provided as follows:
"(1) Damages can only be awarded if the disability results in the death of the worker or it is a serious disability.
(2) A disability is a serious disability if, and only if -
(a) the degree of disability would, if assessed as prescribed in subsection (3), be 30% or more; or
(b) the future pecuniary loss resulting from the disability is of an amount that is at least equal to the prescribed amount.
…
(4) Proceedings in which damages are sought are not to be commenced without the leave of the District Court."
21 Mr Campbell did not claim to have suffered a disability of 30 per cent or more. He contended that he had suffered a serious disability because his future pecuniary loss would exceed "the prescribed amount", which was then about $120,000. That being so, it must be assumed that Mr Campbell was given leave to commence proceedings under s 93D(5)(c) which provides:
"(5) Leave is to be given if -
…
(c) the court determines that the worker is likely to have future pecuniary loss resulting from the disability of an amount that is at least equal to the prescribed amount."
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- "pecuniary loss other than that which has already been incurred at the time when the amount of that loss is required to be determined by a court."
23 The time when loss is required to be determined is at the trial. Thus future pecuniary loss is the loss which the worker will suffer after the trial. It follows that on the application for leave to commence proceedings, the court must have determined that it would be likely that Mr Campbell could prove, at trial, that he would suffer a post-trial loss greater than $120,000.
24 Once Mr Campbell died, he could obviously suffer no further pecuniary loss. Therefore, since "future pecuniary loss" excludes any such loss sustained before trial, Mr Campbell's estate could not now be awarded any damages if the matter went to trial.
25 For the same reasons, the estate of a worker who had suffered a work-related injury and died from other causes before bringing an action, could never obtain leave to commence proceedings.
26 It is therefore clear, in my view, that if a worker who has suffered a potentially serious disability (in terms of loss of earning capacity) dies before trial from unrelated causes, s 93D will take effect to prevent the worker's estate from pursuing a claim for damages arising from that disability.
27 The result is the same, I think, even if the claim is based, or to be based, on a 30 per cent disability. That is because it is not possible to assess the worker's disability after death.
28 The intention that s 93D should prevent an injured worker's claim from being pursued after his death is clear also from cl 5 of Sch 1. That clause applies where a worker has received, or has been entitled to receive, weekly compensation payments for not less than six months immediately preceding his death, where an order for redemption has not been made pursuant to s 67 and where the death has not resulted from the work-related disability. In those circumstances, limited financial provision is made for any surviving spouse or child who is wholly dependant on the worker's earnings.
29 In my view, such provision would be unnecessary if the worker's estate could sue to recover common law damages and is inconsistent with the existence of a right to do so.
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30 I therefore disagree with the conclusion of the learned District Court Judge, who held:
"The estate may very well be able to prove in this Court that the deceased had a cause of action in damages for negligence and had indeed sustained damage thereby perfecting the cause of action in the tort of negligence, but unless the estate can prove that the deceased had a future pecuniary loss resulting from the disability sustained by him by reason of his employer's negligence of an amount at least equal to the prescribed amount, then this Court cannot award any damages."
31 As the Judge observed a little earlier in his reasons: "… it is trite to say that a cause of action for damages in negligence is not perfected unless it can be shown that there is damage." But having regard to the definition of "future pecuniary loss", a court cannot award damages in the case of a deceased worker. That being so, s 93D, which makes proof of damage impossible after a worker has died, effectively extinguishes a worker's common law cause of action in negligence on his death.
32 I therefore conclude that the intention of the legislature was that s 93D should have a dual effect:
(1) to prevent a common law claim for damages being made except where a worker had suffered "a serious disability"; and
(2) to extinguish a common law claim, arising even from a serious disability, on the death of the worker from causes unrelated to the injury which resulted in that disability.
33 In her grounds of appeal the appellant contends that the Judge was wrong in that he:
"1.1 failed to give effect to the object of the Law Reform (Miscellaneous Provisions) Act 1941 being to preserve for the benefit of the estate of a deceased person all causes of action and rights to recover damages vested in the deceased at the time of his death; and
1.2 erred in holding that the appellant is required to prove that the deceased had a future pecuniary loss in excess of the prescribed amount."
34 As to 1.1, the Law Reform Act provides, so far as relevant:
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- "4. (1) Subject to the provisions of this section, on the death of any person after the commencement of this Act all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of his estate. …."
35 In my view, this provision has no application in the present case. It is a measure which preserves for the benefit of a person's estate any causes of action which, at common law, would have been extinguished by the death of that person. Here, the cause of action is effectively extinguished by operation of s 93D. As a result of s 93D, there is no cause of action "vested in the deceased at the time of his death".
36 As to 1.2, I am of the view that the Judge erred in holding that the appellant was "required" to prove Mr Campbell's future pecuniary loss. As I have attempted to explain, there could never be any such loss within the statutory definition.
37 However, the appellant submits that once the worker has died, s 93D ceases to apply, with the result that his estate may pursue a common law claim which is free from the fetters which s 93D imposed during the worker's lifetime.
38 I do not accept that submission. It is contrary to the intention of the legislature that in the circumstances of this case the worker's cause of action should be extinguished by his death. I repeat: the Law Reform Act has no application because there is no surviving claim for the estate to pursue.
39 I therefore disagree with the conclusion of the District Court Judge that s 4 of the Law Reform Act preserved Mr Campbell's cause of action, but that unless the estate could prove that Mr Campbell had suffered a future pecuniary loss resulting from the respondent's negligence, the court could not award any damages. In my view, for the reasons set out above, the court could not award damages to the appellant, representing Mr Campbell's estate, because the estate has no cause of action.
40 I would therefore dismiss the appeal.
41 For the same reason, I consider that the appropriate course would have been to dismiss the action. I would therefore allow the cross-appeal.
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42 EINFELD AJ: I have had the benefit of reading the reasons in draft of Templeman and Murray JJ. For the reasons given by their Honours, I agree with the orders proposed.
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