Farrar v Western Metropolitan College of TAFE

[1998] VSCA 25

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 5972 of 1997

JAMES FARRAR

Appellant

v

WESTERN METROPOLITAN COLLEGE OF TAFE

Respondent

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JUDGES:	WINNEKE, P., CHARLES and BATT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 August 1998
DATE OF JUDGMENT:	20 August 1998
MEDIA NEUTRAL CITATION:	[1998] VSCA 25

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Accident compensation - Workers compensation - Injury arising out of or in the course of employment - Injury occurring at TAFE College premises - Employer not a defendant - Damages for pecuniary loss - Statutory prohibition on damages for pecuniary loss - Exceptions to statutory prohibition - Kidman v. Sefa [1996] 1 V.R. 86 - Accident Compensation Act 1985 (No. 10101) ss.83 (2), 135 (1) - Precedent - Full Court - Court of Appeal - Circumstances in which Court of Appeal may depart from Full Court decisions.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr. D.F. Hore-Lacy Q.C. and	Holding Redlich
Mr. A. Ingram
For the Respondent	Mr. M.J.L. Dowling Q.C. and	Victorian  Government
Mr. M. Grinberg	Solicitor
WINNEKE P:

1. I invite Charles, JA. to give the first judgment in this matter.

CHARLES, JA.:

1. By action commenced in the County Court at Melbourne on 30 November 1992, the plaintiff/appellant claimed from the defendant/respondent damages in respect of injuries sustained on 13 August 1991, when he fell at premises of the defendant in Footscray after tripping over the junction between carpet and linoleum near a door. The plaintiff alleged that the fall was caused by the defendant's negligence and breach of duty under the Occupiers' Liability Act 1983. He was at the time an apprentice fitter and turner employed by Containers Ltd at its premises in Geelong Road, Footscray. He was required or expected by his employer to attend the defendant's college premises for the purposes of receiving tuition as part of his apprenticeship.

2. The defendant, in addition to denying negligence and breach of duty, alleged in its defence that any injury suffered by the plaintiff arose out of or in the course of his employment by Containers Ltd; that therefore the plaintiff was or might be entitled to compensation under the Accident Compensation Act 1985 ("the Act") and was accordingly barred by the operation of s.135(1) of the Act from making any claim in these proceedings for damages for pecuniary loss in respect of the alleged injuries. In his reply, the plaintiff relied on s.83(2) of the Act as deeming his injuries to have arisen out of or in the course of his employment, and alleged that accordingly s.135(1)(b) of the Act permitted the recovery of pecuniary loss damages.

3. A preliminary question was then tried pursuant to County Court Rule 47.04, upon a statement of facts agreed between the parties, as to whether the plaintiff was entitled pursuant to s.135(1)(b) of the Act to claim damages for pecuniary loss in the action. After hearing argument, the learned judge on 10 June 1997 answered this question in the negative and ordered the plaintiff to pay the defendant's costs of the trial of the preliminary question. It is from this decision, and the answer so given, that the plaintiff now seeks to appeal to this Court.

4. The order made by the learned judge answering the question is interlocutory: O'Toole v. Charles David Pty Ltd (1990) 171 CLR 232 at 279-280, since the answer does not "finally dispose of the rights of the parties"; see also Maybury v. Atlantic Union Oil Co. (1953) 89 CLR 507 at 515; Dunstan v. Simmie & Co. [1978] VR 669 at 670. Accordingly an appeal does not lie to this Court without leave (County Court Act 1958, s.74(2D)). Leave to appeal will not ordinarily be granted by the Court unless the decision of the judge at first instance was wrong, or attended with sufficient doubt to warrant its being considered on appeal, and a substantial injustice would be done by allowing the decision to stand: Niemann v. Electronic Industries Ltd [1978] VR 431). But the general rule is always capable of being departed from in exceptional circumstances. In the present case the Court is being asked to decide whether a decision of the Full Court should be reconsidered, and the Court's answer to this question may be important both to the present and other potential appellants. In the circumstances the Court, at the outset of the argument, agreed to hear the application for leave at the same time as the appeal itself, if leave be granted.

5. The Act provides in s.135 -

"(1) A worker who is or the dependants of a worker who are or may be entitled to compensation in respect of an injury arising out of or in the course of, or due to the nature of, employment shall not, in proceedings in respect of the injury, recover any damages in respect of pecuniary loss except -

(b) in proceedings to which the employer is not a party where, by reason of s.83(2), the injury is to be deemed to have arisen out of or in the course of, or due to the nature of, employment if the employee's place of employment is a fixed place of employment and the injury did not occur while the worker was present at that fixed place of employment."

and by s.83(2) -

"(2) An injury to a worker shall be deemed to arise out of or in the

course of any employment if the injury occurs -

(a)        while the worker on any working day that the worker attended at the place of employment -

(i)	is present at the place of employment; or
(ii)	having been present at the place of employment is temporarily absent on that day during any ordinary recess and does not during that absence voluntarily subject himself or herself to any abnormal risk of injury;

(b)        while the worker is travelling between his or her place of residence and place of employment;

(c)         while the worker is travelling between -

(i)	his or her place of residence or place of employment; and
(ii)	any trade, technical or other training school which the worker is required to attend by the terms of his or her employment or as an apprentice or which the worker is expected to attend by the employer;

(d)        while the worker is in attendance at any school referred to in paragraph (c)(ii);

(e)        while the worker is travelling between -

(i)

his or her place of residence or place of employment; and

(ii)

any other place for the purpose of obtaining a medical certificate, receiving medical, surgical or hospital advice, attention or treatment, receiving a rehabilitation service within the meaning of s.99(2) or receiving a payment of compensation in connection with any injury for which the worker is entitled to receive compensation or for the purpose of submitting to a medical examination required by or under this Act;

(f)         while the worker is in attendance at any place referred to in paragraph (e)(ii);

(g)        while the worker is travelling between his or her place of residence and place of pick-up; or

(h)        while the worker who is employed by more than one employer and has attended on any working day at a place of employment for one employer is travelling between that place and a place of work of another employer."

1. In Kidman v. Sefa [1996] 1 VR 86, a decision of the Full Court consisting of Brooking, Ormiston and Nathan, JJ., the plaintiff had injured her wrist at work and underwent surgery which worsened her condition when the surgeon unintentionally severed a portion of a nerve. Attempts to repair the damaged nerve were unsuccessful and the plaintiff was left with a hand that was to a large extent useless. She brought an action against her employer and the surgeon claiming damages for pecuniary loss, relying on s.135(1)(b) of the Act. The trial judge held that the plaintiff was entitled to recover damages for pecuniary loss against the second defendant, the surgeon. The surgeon had argued that on its proper construction, s.135(1)(b) was limited to cases where, but for the deeming required by s.83(2), the injury could not be said to have arisen out of or in the course of employment. Brooking, J. said, at 91, as to the question whether s.135(1)(b) is so limited -

   "It is not a question which can be answered with any confidence, but my impression is that para. (b) was introduced into s.135(1) because the view was taken that it was unreasonable to make the prohibition on the award of damages for pecuniary loss operate in proceedings to which the employer was not a party where the injury was compensable only by reason of the deeming effect of s.83(2), since to do so would have disentitled the worker to damages for pecuniary loss in the case of injuries which were only notionally as opposed to actually arising out of or in the course of the employment, as Herring, C.J. put it in Dykes v. Dunn [1958] VR 504 at p.507."

2. Accordingly, his Honour held that para. (b) of s.135(1) does not extend to cases which, though they fall within the literal terms of s.83(2), are cases of an injury actually arising out of or in the course of employment.

3. Ormiston, J. said, at 92, that -

   "In considering the section as it applies to earlier injuries one can have little intellectual satisfaction in reaching any conclusion as to the intention of the legislature but, in the end, I prefer to adopt the approach of Brooking, J. For the reasons he has stated, but with some hesitation and regret, I would allow this appeal."

4. Nathan, J. agreed in the result, but on the different ground that the exception in para. (b) of s.135(1) does not apply where the employer is a party to the proceedings. In that case the employer was, of course, the first defendant.

5. Mr Dowling, QC, who appeared with Mr Grinberg for the respondent in this Court, argued, as he had before the primary judge, that Kidman v. Sefa governed the case. He submitted that the learned judge had held, correctly on the agreed facts, that the plaintiff's injury actually arose out of or in the course of his employment and was not an injury compensable only by reason of the deeming effect of s.83(2). Accordingly the plaintiff was not entitled to claim any damages in respect of pecuniary loss by virtue of s.135(1).

6. Mr Hore-Lacy, QC, who appeared in this Court with Mr Ingram for the appellant, did not, as I understand him, submit that the plaintiff's injury was compensable only by reason of the deeming effect of s.83(2). The plaintiff's injuries, at common law, clearly arose out of and in the course of his employment; Watson v. C.C. Engineering Industries Pty Ltd (1946) 46 SR(NSW) 261, per Jordan, C.J. at 264. Mr Hore-Lacy put two propositions to the Court. The first was that Kidman v. Sefa should be distinguished from the present case because there the employer was sued, the original injuries occurred by reason of the employer's negligence and the original injuries occurred at a fixed place of employment. He submitted that the present case falls squarely within para. (b) of s.135(1), the purpose of which, he submitted, was to permit a plaintiff who would otherwise be precluded from making a claim for damages for pecuniary loss to make such a claim where the defendant, against whom negligence was alleged, was not the employer, where the injury fell within the deeming provisions of s.83(2), the place of employment was fixed, and injury was sustained outside that fixed place of employment. The purpose of s.83, so Mr Hore-Lacy put it, was to deem certain activities to have arisen out of or in the course of employment and, once this deeming provision was satisfied, the need to have recourse to any common law test applicable to the determination of the same issue was obviated. The argument continued that disputes and inconsistencies in interpretation as to what activities could be said to arise "out of or in the course of employment" had led to the introduction of s.83(2), the sub-section being intended to remove cases of doubt and clarify those activities in respect of which employees were to be entitled to compensation for injuries suffered; as to which see Buchanan & Brock Pty Ltd v. Harris (1957) 98 CLR 22 at 27-28.

7. The ratio decidendi of Kidman v. Sefa is, in my view clearly, that the exception made by para. (b) to s.135(1) only applies to injuries deemed by s.83(2) to be injuries arising out of or in the course of employment, and does not apply to injuries which actually arose out of or in the course of employment. The injuries in the present case were correctly held to have arisen out of, or in the course of, employment, or both. Mr Hore-Lacy's first proposition therefore fails.

8. Mr Hore-Lacy's second submission was that Kidman v. Sefa was wrongly decided and should be overruled. He submitted that the effect of the decision was wrongly to "limit the operation of para. (b) of s.135(1) to a deemed employment", where the employment would not have been so deemed but for s.83(2) and, on this basis, s.135(1)(b) would have no application at all, because "each of the paragraphs in s.83(2) is an employment situation at common law".

9. In Nguyen v. Nguyen (1990) 169 CLR 245, at 268-270, Dawson, Toohey and McHugh, JJ. considered the extent which the Full Court of the Supreme Court of a State should feel bound to follow its own previous decisions, (saying that this "must be a matter of practice for the court to determine for itself") and the circumstances in which a court of appeal might depart from an earlier decision. Their Honours said, at 269, that -

   "Where a court of appeal holds itself free to depart from an earlier decision it should do so cautiously and only when compelled to the conclusion that the earlier decision is wrong. The occasions upon which the departure from previous authority is warranted are infrequent and exceptional and pose no real threat to the doctrine of precedent and the predictability of the law: See Queensland v. The Commonwealth [(1977) 139 CLR 585 at 620 et seq.], per Aickin, J.",

   and at 269-270 -

   "it would seem inappropriate that the appeal courts of the Supreme Courts and of the Federal Court should regard themselves as strictly bound by their own previous decisions .... Rigid adherence to precedent is likely on occasions to perpetuate error without, as experience has shown, significantly increasing the corresponding advantage of certainty."

10. Kidman v. Sefa is, as I have said, a decision of the Full Court of this State and, consistently with what was said in Nguyen v. Nguyen, this Court will follow such a decision unless exceptional circumstances compel its reconsideration; R. v. Tait [1996] 1 VR 662 at 666, per Callaway, JA.; R. v. Su and Ors. [1997] 1 VR 1 at 14. An example of such reconsideration by the Full Court (applying Nguyen v. Nguyen) is Avco Financial Services Ltd v. Abschinski [1994] 2 VR 659. See also Schwerin v. City of Sale [1997] 2 VR 219 at 231. Having regard to what was said in Nguyen v. Nguyen, the same test is, I should have thought, likely to be applied when this Court is asked to reconsider its own previous decisions.

11. In my opinion, no exceptional circumstances exist in this case to compel reconsideration of Kidman v. Sefa. I accept that para. (b) of s.135(1) of the Act is open to more than one possible interpretation, as is evident from what was said in Kidman v. Sefa by Brooking, J. at 91 and by Ormiston, J. at 92, not to mention the fact that Nathan, J. took a different approach to the operation of the section. The effect of the decision is, indeed, to leave very little - if any - room in which s.135(1)(b) could operate; and, if the purpose of s.83(2) was to remove cases of doubt and clarify the position (or provide a code under which it could readily be decided whether an injury had arisen out of or in the course of any employment), the interpretation of s.135(1)(b) preferred in Kidman v. Sefa has the necessary consequence of requiring the courts to examine each situation in which a plaintiff seeks to rely upon the s.135(1)(b) exception in the detail necessary to determine whether the injuries actually or only notionally arose out of or in the course of employment, having regard to the diverse situations covered by s.83(2). But, notwithstanding these considerations, on no view could the relevant part of the ratio of Kidman v. Sefa be considered per incuriam, or contrary to principle. Furthermore, as Ormiston, J. pointed out, s.135(1)(b) is now confined in operation to injuries arising before 1 December 1992. But more significant still is the fact that the Act is under regular review by Parliament, having been amended on several occasions since Kidman v. Sefa was decided. I should have thought that the argument against reconsideration of a decision, and in favour of maintaining certainty and consistency, was particularly strong in a case such as the present, where the Full Court has recently decided a matter of interpretation of Victorian legislation, and where that legislation is under regular review by Parliament. If Parliament intended a result different from that reached by the Court, the legislation would, no doubt, be suitably amended.

12. The learned judge here was bound by Kidman v. Sefa and correctly applied the law in answering the question posed.

13. I would dismiss the application for leave to appeal.

WINNEKE P: 

1. I agree. Although Mr Hore-Lacy, in his helpful submissions, contended on behalf of his client that leave to appeal was not required, I am not in doubt that it is. Section 74(2D) of the County Court Act 1958 provides that an appeal does not lie to this court from a judgment or order of the County Court in an interlocutory application. These words have been interpreted as meaning "interlocutory judgment or order". See Border Auto Wreckers (Wodonga) Pty Ltd v. Strathdee [1997] 2 VR 49.

2. The learned judge's order upon the preliminary issue, left to him pursuant to Order 47.04, was that the applicant was not entitled to claim, as part of the damages sought against the respondent, damages for pecuniary loss. Such an order is interlocutory in nature because it does not finally dispose of the rights of the parties in the proceedings pending between them; see Dunstan v. Simmie & Co. [1978] VR 669. Finally, the case of White v. Brunton (1984) 1 QB 570 is not in point because the preliminary question there determined disposed of the only issue in contention between the parties.

3. For the reasons which have been given by Charles, JA., this is not a case where leave to appeal is warranted. In essence, leave is sought to enable this court to reconsider the correctness of a decision recently given by the Appeal Division of the Supreme Court in Kidman v. Sefa [1996] 1 VR 86, in which the majority of the court (Brooking and Ormiston, JJ.) construed the provisions of s.135(1)(b) of the Accident Compensation Act 1985 in a manner adverse to the contentions which the applicant in this case desires to advance. The trial judge rejected those contentions, which he was bound to do. Although Mr Hore-Lacy advanced arguments to this court seeking to distinguish the facts of this case from those considered in Kidman v. Sefa, those distinctions are peripheral to the central issue which was decided in Kidman's case (page 91 of the judgment), and which bound the judge to determine the preliminary issue in the way in which he did. This court should not grant leave to appeal to reconsider the correctness of a decision of its own or its predecessor unless it is satisfied that exceptional circumstances exist to compel such reconsideration (Nguyen v. Nguyen (1990) 169 CLR 245 at 268-269; Avco Financial Services v. Abschinski [1994] 2 VR 659 at 667 per Southwell, J.; R. v. Su [1997] 1 VR 1 at 14. No such circumstances exist in my view in this case. The court in Kidman's case came to its conclusion as to the proper interpretation of s.135(1)(b) of the Accident Compensation Act after a consideration of the history of the legislation, the construction of which has proved difficult and in respect of which certainty of application is, above all, required. I would accordingly agree with Charles, JA. That, the final judge having correctly applied the law, leave to appeal should be refused.

BATT, J.A.:

1. I agree with Charles, JA.

2. As a result of the close and helpful arguments of counsel yesterday, it appears to me that very few, indeed, of the numerous cases enumerated in s.83(2) of the Accident Compensation Act 1985, as it stood at the relevant time, are not also cases of an injury actually "arising out of or in the course of" employment, as that phrase, found in the central provision conferring entitlement to statutory compensation, has come to be interpreted in the evolving case law. If that be correct, the area of operation accorded to s.135(1)(b) by the ratio decidendi of Kidman v. Sefa [1996] 1 VR 86, which is found at the foot of page 91, is, with respect, minimal at most. Thus, it can with some force be contended that the provision is virtually superfluous or otiose, a result against which one strives in construing a statute unless it is unavoidable: Pearce & Geddies, Statutory Interpretation in Australia 4th Edition, para. 2.12. Further, the interpretation put upon s.135(1)(b) will bring to life again the very contentions which the several paragraphs of s.83(2) were intended to quell, namely, controversies as to whether a given injury arose out of or in the course of a claimant's employment.

3. Nevertheless, this is not, in my view, the type of case in which this court should reconsider a previous decision of its own or its predecessor. No matter of general principle is in question. There is no stream of authority against which the decision goes. The legislation in question has been amended frequently and in a piecemeal fashion, and one should not expect to find it entirely self-consistent or all its provisions capable of rational explanation. The operation of s.135(1)(b) has a limited life and, as Charles, JA. most tellingly points out, this is an Act which is under regular review by Parliament, which has to date evinced no dissatisfaction with the decision and which can even now reverse it legislatively if it thinks that appropriate.

4. Accordingly, whilst conscious that this Court should not adhere at all costs to its previous decisions or previous decisions of the Full Court (Nguyen and Nguyen (1990) 169 CLR 245 at 269-270), I am of opinion that Kidman v. Sefa should not be reconsidered.

5. It follows that the correctness of the decision of the County Court judge, arrived at by a proper application of Kidman v. Sefa, is not attended by any doubt.

6. Leave to appeal must therefore be refused.

WINNEKE, P.:

1. The formal order of the court will be that the application for leave to appeal is refused with costs.