Gardiner v State of Victoria

[1999] VSCA 100

SUPREME COURT OF VICTORIA

COURT OF APPEAL	Not Restricted
No. 8070 of 1997

PETER JOHN GARDINER

Appellant

v

STATE OF VICTORIA

Respondent

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JUDGES:	WINNEKE, P., PHILLIPS and CALLAWAY, JJ.A
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 March, 1999
DATE OF JUDGMENT:	2 July, 1999
MEDIA NEUTRAL CITATION:	[1999] VSCA 100  1st Revision – 8 October 1999

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Accident compensation – Total incapacity from work-related injury – Worker’s resignation accepted – Worker’s subsequent recovery in part - Application to be re- employed rejected by employer – Whether employer in breach of obligation to provide employment – Whether worker has private right of action for breach of statutory duty – Accident Compensation Act 1985 s.122.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr. R.P. Dalton Q.C.	O’Connor & O’Connor
and Mr. M.J. Waugh
For the Respondent	Mr. M.J.L. Dowling Q.C.	R. C. Beazley Victorian Government Solicitor

GARDINER v. THE STATE OF VICTORIA

WINNEKE, P :

1. I have had the benefit of reading in draft the reasons for judgment of the other members of the Court.

2. I respectfully agree with their Honours that this appeal must fail both on the facts, for the reasons assigned by Callaway, J.A., and also because I share the view of Phillips, J.A., for the reasons which he gives, that s.122 of the Accident Compensation Act 1985 (in the form in which it was enacted at the relevant time) did not create any private right of action in the appellant which would sustain the claim which he makes for an injunction or damages or (if permitted) a declaration of right.

3. Like Callaway, J.A., I cannot help but feel sympathy for the appellant when underlying illness was clearly a contributing factor to the termination of his long standing employment with the State of Victoria.

PHILLIPS, J.A.:

1. This is an appeal from a judgment given in the County Court on 18 November 1997, dismissing the appellant's action, with costs. In his pleading, the appellant alleged that the defendant, once its employer and now the respondent, had failed to provide him with employment as required by s.122 of the Accident Compensation Act 1985 and sought either an order compelling the respondent to perform its statutory duty by providing him with such employment, or damages for non-compliance. At the relevant time, s.122 read as follows: -

"(1)

If within the period referred to in sub-section (3) after a worker commences to be entitled to receive weekly payments in respect of an injury arising out of or in the course of employment with an employer -

(a)	the worker no longer has an incapacity for work, the employer must provide employment for the worker in a position which is the same as or equivalent to the position which he or she held before the injury; or
(b)	the worker has a partial incapacity for work, the employer must provide suitable employment for the worker.

Penalty: 150 penalty units.

(2)

Sub-section (1) does not apply if the employer shows that it is not practicable for the employer to provide employment in accordance with that sub-section.

(3)

For the purposes of this section, the period for the purposes of sub-section (1) after a worker commences to be entitled to receive weekly payments is the period of 12 months or the sum of the periods not exceeding, in the aggregate, 12 months first occurring after the injury during which the worker has an incapacity for work."

1. The respondent disputed the appellant's claim, contending that s.122 did not give rise to any private right of action, that s.122 did not bind the Crown and, if it did, that s.122 did not apply in the circumstances of the case, the employment of the appellant having been mutually terminated as at 3 March 1991 by the respondent's accepting the appellant's voluntary resignation. All three of these contentions were rejected by the trial judge. But his Honour went on to hold that there could be no breach of s.122 unless and until the employer had knowledge of the condition calling s.122(1) into play - that is, that the worker "no longer has an incapacity for work" or "has only a partial incapacity for work" - and in this case, the respondent was not shown to have had that knowledge, or at all events was not shown to have had that knowledge within the period marked out by s.122(1). The judge's finding was, in substance, that, the appellant having been at first totally incapacitated for work, the respondent had no notice of the appellant's recovery, or no notice until after the period mentioned in s.122(1) had expired. It was on that ground that his Honour gave judgment for the respondent.

2. On this appeal, the appellant challenges both the judge's construction of s.122 and his finding that, if notice was required, appropriate notice was not given in time. By notice of contention, the respondent seeks to maintain the judge's decision on the ground that, contrary to his Honour's view, s.122 does not confer any private right of action for breach of statutory duty or, if it does, the section can have no application once the employment relationship has been determined by mutual agreement (as was so here, as from 3 March 1991).

   The background

3. The appellant, who was born in 1949, joined the Law Department in February 1967. He resigned in March 1970, only to rejoin in July 1974. He remained with that department until 3 March 1991, by which time he was an assistant registrar in the County Court. From at least 1975, the appellant suffered from a mental illness and, from time to time, when he suffered acute episodes he required hospitalisation. One such period of hospitalisation occurred between 9 August 1991 and 26 September 1991.

4. It was by letter dated 7 February 1991 to the Registrar of the County Court that the appellant formally tendered his resignation from the Victorian Public Service. The response came from the Chief Executive Officer of the County Court, by letter dated 11 February 1991, which read as follows:-

   "I refer to your letter dated 7 February 1991 advising of your intention
   to resign from the Victorian Public Service.
   I confirm that your date of resignation will be effective from 3 March
   1991 which takes into account recreation leave accrued to 3 March
   1991.
   All monies owing to you which includes salary, recreation leave
   loading and pay in lieu of long service leave will be posted to your
   postal address.
   A 'Refund of Superannuation Contributions' form is attached for your
   information. Please complete and return it to me as soon as possible.
   It will be forwarded to the Superannuation Board for you."

   The attached form was headed "State Superannuation Board of Victoria" and "Resignation Benefit Application". It was signed by the appellant on 21 February and, it would appear, submitted accordingly. His Statement of Termination Payment, for income tax purposes, was dated 2 July 1991 and recorded an "Eligible Termination Payment" of $35,817.31.

5. On 5 September 1991, the appellant lodged a claim for compensation under the Accident Compensation Act 1985 ("the Act"). The injury described was "stress and anxiety leading to nervous breakdown": the date of ceasing work was given as 7 February 1991. This claim for compensation was rejected, apparently by the Accident Compensation Commission under s.110. On 5 March 1992, on an application for review the WorkCare Appeals Board made findings that the appellant had a pre-existing disease, namely a bipolar affective disorder, that his employment was a contributing factor to the deterioration of that disease, and that as a result he was incapacitated for employment "from in or about January 1991". The Appeals Board made a determination accordingly that the appellant was entitled to compensation in accordance with the Act "from in or about January 1991 to date and continuing in accordance with law". That determination was communicated by letters dated 6 April 1992 to both appellant and respondent, the latter being informed that it was "required to commence payments at the rate of $550 per week, effective from 7 February 1991." I assume that that amount reflected total incapacity for the time being.

6. Meanwhile, on 8 November 1991, solicitors for the appellant had written to the Attorney-General's Department as follows:-

   "We advise that we act on behalf of the abovenamed who resigned from his position of County Court Civil Listings Assistant Registrar on the 7th February 1991.

   We are instructed by our client to advise that he wishes to withdraw his resignation and be reconsidered for employment in the Department.

   The reason for this is that medical evidence now indicates that the resignation was made at a time when he was not capable of giving rational consideration to the implications of his decision.

   We would be grateful if you could contact the writer to advise what steps can be taken by Mr. Gardiner to achieve reinstatement."

   By letter dated 22 January 1992, the Attorney-General's Department responded that the appellant's resignation "is regarded as effective as at 3 March 1991 and is not able to be withdrawn". It was not possible, it was said, "to reinstate [the appellant's] employment in the Attorney-General's Department".

7. Seven months later, on 25 August 1992, the appellant's solicitors wrote again to the Attorney-General's Department, claiming that there appeared to be "a grave misunderstanding of Mr. Gardiner's position”. In the previous letter, that of 8 November 1991, it had been asserted that the appellant had "resigned from his position ... on the 7th February 1991"; now it was claimed that the appellant "ceased work on or about the 3rd March 1991 when he purported to resign". The letter continued: "At that stage the medical evidence is clear that Mr. Gardiner was gravely ill. Any purported resignation was not [sic] est factum". Reference was made to a medical report tendered to the WorkCare Appeals Board from one Dr. Nigel Strauss, opining that "a return to work would be advisable". Section 122(1) was set out and the letter concluded with a submission that the department was "under a clear obligation pursuant to [the Act] to assist in the rehabilitation and re- employment of [its] injured employee".

8. The department's response, by letter dated 27 October 1992, was that the Department of Justice (as by then it was) was no longer the appellant's employer and that in addition “recent changes to recruitment practices in the Public Service mean that the Department of Justice is unable to offer Mr. Gardiner a position even if a suitable position were available”. Some nine months later, on 29 July 1993, the appellant filed the writ to commence this proceeding.

   The appellant's claims

9. There are a number of difficulties standing in the way of the appellant's success in his action. First, it is clear from the foregoing that the parties are not in agreement about the termination of the appellant's employment. It is not easy to see how the appellant can expect to have his employer act upon the footing that his resignation was in fact no resignation because of his illness. Without express agreement to that effect (and, I imagine, reversal of the payments to him by the department and the superannuation fund the time of his apparent resignation), I should have thought that, if it mattered, the appellant would have to establish, if necessary by litigation, that he was still employed in the public service after 3 March 1991. If, then, the operation of s.122 depends upon the continuation of the employment relationship that is a hurdle not yet overcome. For present purposes I will simply assume, without deciding, that s.122 may still operate although the employment relationship has earlier been brought to an end mutually: contrast s.123(1)(a), (3). In practice, of course, such previous determination of employment must make it more difficult for the employer to comply with s.122(1), unless recourse can be had to subs. (2).

10. Other difficulties confronting the appellant lie in his insistence that the Crown is bound by s.122 and is amenable for breach to an order either that it provide employment according to s.122 or that it pay damages for non-compliance. Mandamus is generally said not to lie against the Crown (although compare Aronson & Dyer, Judicial Review of Administrative Action (4th ed., 1996) at 772-781); nor would mandamus go, lacking any public element (and it is the appellant’s case that the duty owed by the employer under s.122 is owed privately). On the other hand a mandatory injunction to put the employee back in employment would be at least highly unusual, even if the employer were not the Crown; and liability in damages for breach of statutory duty does not fit within the framework of the Crown Proceedings Act 1958. Perhaps, as appellant’s counsel contended, the terms of the Accident Compensation Act are such as to overcome at least some of these difficulties, but fortunately I think that there is no need to pursue that. To my mind the resolution of this appeal turns on other considerations.

    Notice to the employer

11. The trial judge held that, in order to give s.122 sensible operation, an employer could not be in default under subs.(1) unless and until he had notice of the worker's relevant capacity for work (whether partial or not). Despite Mr. Dalton's argument to the contrary, I should have thought that that must be so, given that on its face s.122 is a penal provision. So far as a worker is concerned whose injury has at first rendered him totally incapacitated for work (as was so in the case of the appellant), the section requires in terms that the worker shall have recovered at least some capacity for work within the period mapped out by subss.(1) and (3) - which for present purposes we may regard as the period of 12 months "after the worker commences to be entitled to receive weekly payments" of compensation "in respect of" the relevant injury. Prima facie that commencement was fixed in this case by the letters dated 6 April 1992, communicating the determination of the WorkCare Appeals Board and directing that the employer make weekly payments "effective from 7 February 1991". That was the date of the appellant’s resignation; it was with effect from 3 March because of some holiday pay which was due, but as will be seen that difference in date does not matter. What does matter is this: if the relevant period was 12 months from 7 February (or 3 March) 1991 it was necessary for the appellant to establish not only that he made some not insignificant recovery from incapacity within that period, but also that the employer was made aware of that recovery.

12. The trial judge, however, went further, holding that the employer must be made so aware during the very period of 12 months within which the recovery must have occurred if s.122(1) was to be attracted. In other words, the obligation cast on the employer to provide employment according to s.122(1) was treated as an obligation arising, if at all, within the time frame mapped out by subss.(1) and (3). At first I was disposed to think that this might be an unwarranted gloss upon the section and that it was sufficient if the employer learnt of the worker's recovery within, say, a reasonable time of the worker's recovery (whether or not within the 12 months relevant to the recovery itself), but reflection suggests that that is probably not so. While it is easy enough to imply that the employer must have a reasonable time to provide the employment required by s.122(1) before the employer can be said to have committed an offence under that subsection, it is difficult to see why the 12 months period (during which it would appear that the employer could be at risk of a criminal offence should the appellant recover some capacity for work) should be extended for some uncertain period dependent upon the worker's giving notice of recovery, which after all could be delayed for all sorts of reasons, whether intentionally or otherwise. As at present advised (though I express no concluded opinion) I think that the judge’s view is to be preferred.

13. It should be observed in passing that although the employer's obligation to provide employment to a worker who was once totally incapacitated depends first upon the worker's recovering some capacity for work during the time marked out by s.122 and only secondly upon the employer's becoming aware of the recovery, the trial judge made no finding about when that recovery occurred in this instance. Presumably he was not asked to. (I simply observe in passing that the medical certificates in evidence do not appear to have been all one way.) The debate before us was only over when the employer received notice of the appellant's recovery, on the assumption that relevant recovery did take place during the 12 months fixed by s.122, although at a time unspecified.

14. The appellant relied upon a number of documents as putting the employer on notice of his recovery, but it seems to me difficult to view any of them as sufficient in this regard, if (as I have suggested might be so) the employer had to be made aware of the recovery during that period of 12 months within which the recovery itself must have occurred. The first of these documents was the appellant's initial claim for compensation, dated 5 September 1991, but that dealt only with the injury and its cause. The second, an internal memorandum of the employer's dated 16 October 1991, was about the appellant's capacity for work when fit, but again it did not deal at all with his current level of fitness for work. Both these first two documents, it was said, relied upon the provisions of the Act, and thus relied, inter alia, upon s.122. But that is not enough; neither gave notice of any recovery. Then came the letter of 8 November 1991 which has already been set out (in paragraph [10]). In this letter the appellant, by his solicitors, was seeking to have his resignation discarded and his employment reinstated. Again this gave no notice of recovery; it was dealing with something quite different. The appellant relied next upon a medical report of his treating psychiatrist, dated 9 December 1991, but, like the medical report earlier mentioned from Dr. Strauss which was dated 11 November 1991, there was no evidence that the report came to the attention of the employer until the hearing before the WorkCare Appeals Board on 5 March 1992, by which time the 12 months period fixed by s.122 had run its course. Although the appellant relied upon other documents, too, in support of the submission that the employer was made aware of his recovering some capacity for work before the end of that period of 12 months, those other documents were all dated 5 March 1992 or later.

15. There is thus good ground for concluding that in this instance the respondent employer was not made aware until after the end of the period of 12 months relevant to an invocation of s.122(1) of such recovery by the appellant as occurred within that time. If, as I have suggested might be so, it is necessary under s.122(1) that within that time the employer become aware that the worker, who was once totally incapacitated by the injury, has regained some capacity for work, then probably that was not the case here and on that ground alone the appeal would fail.

    Breach of statutory duty

16. But there is other reason for dismissing this appeal and I prefer to rest on that; for in my opinion s.122(1) does not give rise to any private right of action in the worker should the employer fail to provide employment as required by the subsection. The appellant relies upon breach of statutory duty to base his claims and I think that no such right of action arises upon default under s.122(1).

17. The question of an individual's right to sue for breach of some statutory duty imposed generally upon another has proved troublesome for a long time now, to such an extent that one learned writer has called upon the High Court to abolish the cause of action altogether - which if I may say so seems rather extreme. (I refer to Prof. J.L.R. Davis, "Farewell to the Action for Breach of Statutory Duty?", published as ch.5 of Mullany & Linden, Torts Tomorrow to which I have been referred by Callaway, J.A.) If treated as a tort, the cause of action is a tort of strict liability; for it exists irrespective of negligence. (Contrast Fleming on Torts (9th ed., 137-8) where it is referred to as "statutory negligence" or "negligence per se, that is negligence as a matter of law".) The remedy is born of a statute which, while prescribing certain conduct, most commonly creates non-compliance an offence, attaching a penalty. It is generally accepted that a right to sue arises in an individual who is injured by the non-compliance only if there can be discerned in the statute an intention on the part of the Parliament that such should be so, and of course that creates the difficulty because usually Parliament has not turned its mind to the problem at all. It is often said that it is just not possible to reconcile the multitude of cases in which the question of an individual's right to sue for breach of statutory duty has been considered, although at least in part that is scarcely surprising, given the large variety of statutes in the context of which the question has arisen. An obvious contrast can be drawn between the result in Monk v. Warbey [1935] 1 K.B. 75 (in which the person injured by an motor vehicle which was not insured as required was permitted to sue the owner for breach of the statutory duty) and on the other hand the result in Phillips v. Britannia Hygienic Laundry Co. Ltd. [1923] 2 K.B. 832 (where the injured person was denied the right to sue the owner of the motor vehicle which was not kept in a safe condition as required by regulation); see further Cutler v. Wandsworth Stadium [1949] A.C. 398 at 407 and Tan Chye Choo v. Chong Kew Moi [1970] 1 W.L.R. 147 at 152-4. Yet the search for legislative intention continues, and hence the criticism which is so often levelled at this cause of action.

1. The usual starting point in a case like this is the judgment of Dixon, J. in

   O'Connor v. S.P. Bray Ltd. (1937) 56 C.L.R. 464 at 477-8, where his Honour said:- "The received doctrine is that when a statute prescribes in the interests of the safety of members of the public or a class of them a course of conduct and does no more than penalise a breach of its provisions, the question whether a private right of action also arises must be determined as a matter of construction. The difficulty is that in such a case the legislature has in fact expressed no intention upon the subject, and an interpretation of the statute, according to ordinary cannons of construction, will rarely yield a necessary implication positively giving a civil remedy. As an examination of the decided cases will show, an intention to give, or not to give, a private right of action has more often than not been ascribed to the legislature as a result of presumptions or by reference to matters governing the policy of the provision rather than the meaning of the instrument. Sometimes it almost appears that a complexion is given to the statute upon very general considerations without either the authority of any general rule of law or the application of any definite rule of construction. An illustration may be found in a comparison of the decision and reasoning in Phillips v. Britannia Hygienic Laundry Co. with those in Monk v. Warbey. Perhaps in the end, a principle of law will be acknowledged as the foundation of the cases." [Emphasis added]

2. As Dixon, J. said, the search for legislative intention seems sometimes to have been resolved "without either the authority of any general rule of law or the application of any definite rule of construction" and no doubt it was such opinions that led Kitto, J. in Sovar v. Henry Lane Pty. Ltd. (1967) 116 C.L.R. 397 at 405 to reiterate that the search was none the less for legislative intention. His Honour said:-

   "But at the outset of every inquiry in this field it is important, in my opinion, to recognize, notwithstanding the views expressed by some writers (see Mr. G.M. Fricke's article 76 Law Quarterly Review 240), that the question whether a contravention of a statutory requirement of the kind in question here is actionable at the suit of a person injured thereby is one of statutory interpretation. The intention that such a private right shall exist is not, as some observations made in the Supreme Court in this case may be thought to suggest, conjured up by judges to give effect to their own ideas of policy and then 'imputed' to the legislature. The legitimate endeavour of the courts is to determine what inference really arises, on a balance of considerations, from the nature, scope and terms of the statute, including the nature of the evil against which it is directed, the nature of the conduct prescribed, the pre-existing state of the law, and, generally, the whole range of circumstances relevant upon a question of statutory interpretation. It is not a question of the actual intention of the legislators, but of the proper inference to be perceived upon a consideration of the document in the light of all its surrounding circumstances. Of course, as reported cases illustrate again and again, decisions given upon enactments which seem fairly comparable will not always be easy to reconcile with one another, for upon questions of inference some lack of uniformity of opinion is to be expected. But that is no justification, it seems to me, for seeing the task as other than a genuine exercise in interpretation." [Emphasis added]

   Much of this was quoted with approval by Brennan, J. in Sutherland Shire Council v. Heyman (1985) 157 C.L.R. 424 at 482 and by McHugh and Gummow, JJ. in Byrne v. Australian Airlines Ltd. (1995) 185 C.L.R. 410 at 460-1. In Byrne, McHugh and Gummow, JJ. were critical of the search for legislative intention saying (at 459) that "to plumb the intent of the particular body which enacted the law in question may be an illusory quest". Professor Davis (at 72) latches on to this criticism, but as I read their Honours’ judgment, they were speaking here of the actual intention of the legislators. If on the other hand the quest is for the intention of the Parliament as disclosed by the words used in the legislation, the search may be difficult but it should not be illusory.

3. The fundamental task, then, is to determine whether the statute evinces an intention that the individual should have a right of action for breach of the statutory duty. In Byrne Brennan, C.J., Dawson and Toohey, JJ. said this, at 424:-

   "A cause of action for damages for breach of statutory duty arises where a statute which imposes an obligation for the protection or benefit of a particular class of persons is, upon its proper construction, intended to provide a ground of civil liability when the breach of the obligation causes injury or damage."

   Thus it is often asked whether, upon a proper consideration of the scope and purpose of the statute as a whole, it can be said that the Act which contains the particular obligation at issue was passed primarily for the general good; for if the statute as a whole can fairly be characterised as passed primarily for the general good rather than for the benefit or protection of some only within the wider community, that is nowadays regarded as pointing strongly against a Parliamentary intention that an individual should be able to sue for non-compliance with some particular provision: Balkin & Davis, Law of Torts (2nd ed., 1996) 506. On that footing, legislation providing for the general regulation of prisons has been held to give no private right of action for breach, though such legislation doubtless operated, at least in part, to protect the inmates: R. v. Deputy Governor of Parkhurst Prison ex parte Hague [1992] 1 A.C. 58. So too, social welfare legislation, setting out the duties of authorities relating to the protection of children against abuse, has been held to create no private right of action: X v. Bedfordshire County Council [1995] 2 A.C. 633.

4. Another factor which is sometimes helpful is the existence or not of other remedy. As I have stated, a penal sanction will commonly be found attached to the legislative prescription, and prima facie that excludes the implication of additional civil liability. But if there is no such penalty or other remedy for breach of the statutory duty, or if the penalty which is fixed is considered inadequate (as in Groves v. Lord Wimborne [1898] 2 Q.B. 402), that can point towards the individual's right to sue for breach. A modern example of this may be found in Owen v. Shire of Kojonup [1965] W.A.R. 3, where the Court had to consider a statutory provision requiring local authorities to take out insurance for personal injuries sustained by voluntary fire fighters while fighting bush fires. It was held by Hale, J., and the Full Court accepted, that the plaintiff who was injured in such circumstances could sue the local authority for damages for not insuring him as required. In the course of his judgment, Hale, J. said, at 5:-

   "... it is doubtless correct that the public are interested in having men willing to take risks in fire fighting, but this interest could be advanced by s.37 [requiring the insurance] only if the section confers some effective remedy on a man who is injured in such circumstances, and in that regard the possible penalty of £50 for default prescribed by s.58 would be nugatory."

   Given the obvious purpose of the section to ensure that fire fighters could have recourse to insurance if injured, the lack of a significant penalty for non-compliance with the statutory requirement led the Court to conclude that civil liability was intended also. On the other hand, the existence of a complex or elaborate administrative structure to monitor compliance with the statute may point the other way: Balkin and Davis 507. In Byrne at 461, 425-6, the existence of alternative enforcement procedures was regarded as very important.

5. Since Groves v. Lord Wimborne and in Australia O'Connor in particular, it has been accepted that in the area of health and safety in employment a statutory duty imposed on the employer is imposed for the protection of those whose personal safety is put at risk by non-compliance, and in them is recognised a right to sue for damages for breach notwithstanding that non-compliance is also penalised as an offence. Again I refer to Sovar, at 404, where Kitto, J. said of a s.27(1) which required an employer to maintain certain fencing around machinery:-

   "In the case of an enactment such as s.27(1), prescribing conduct to be observed by described persons in the interests of others who, whether described or not, are indicated by the nature of a peril against which the prescribed conduct is calculated to protect them, the prima facie inference is generally considered to be that every person whose individual interests are thus protected is intended to have a personal right to the due observance of the conduct, and consequently a personal right to sue for damages if he be injured by a contravention. At least this is so where the peril provided against is one of personal injury and the relationship existing between the person enjoined and the person protected is one which is recognized by the common law as giving rise to a duty on the part of the former to take precautions for the safety of the latter."

   As this last comment shows, however, the recognition of the employee's right to sue for breach of such a statutory duty owes something to the employer's duty to take reasonable care for the safety of his employees. In O'Connor Dixon, J. said:-

   "In the absence of a contrary legislative intention, a duty imposed by statute to take measures for the safety of others seems to be regarded as involving a correlative private right, although the sanction is penal, because it protects an interest recognised by the general principles of the common law."

   In a sense the further obligation imposed by the statute is seen as developing or elaborating upon the pre-existing duty. It is "the statutory prescription of a higher or more specific standard of care", the duty of care already existing at common law: Byrne at 424.

6. Turning now to s.122, it was not contended before us that the duty to provide employment upon the worker's recovering from injury was a duty recognised at common law, or even built upon a duty recognised at common law. Of course it can be said that the Accident Compensation Act as a whole is building generally upon relations between employer and employee; for the system which it establishes of compensation for employees who suffer work-related injury is longstanding and would nowadays be regarded as an essential adjunct to employment. On the other hand, in imposing specifically a duty to provide employment upon a worker's recovery from injury, s.122 cannot be said to be building upon any common law duty of the employer's. Indeed, the common law tends the other way. At least in general the courts will not constrain the continuation of the employment relationship against the will of either party, and the absence of any relevant common law duty is surely emphasised if, as the appellant contended, s.122(1) was called into play in this instance even if the employment relationship came to an end upon the appellant's resignation with effect from 3 March 1991.

7. But that is not the end of the argument. It remains still to seek the intention of the Parliament, and in this instance to determine from the legislation itself whether s.122 in particular was enacted for the benefit of the class of persons likely to be injured by non-compliance. The argument before us tended to assume that that class was obviously those workers who recovered from injury within the time fixed by s.122 (or who otherwise had some partial capacity for work). But the section does in terms require that the employer provide employment to such workers, and if that is not just to offer the employment the section will work to the benefit only of a worker who is seeking such employment. That should not be overlooked altogether.

8. But if it be assumed, if only for the sake of the argument, that those most likely to be injured by the employer's failing in the duty imposed by s.122(1) are those workers who recover, at least in part, from work-related injury within the relevant period of 12 months, the question remains: was s.122(1) enacted for the purpose of conferring a benefit directly upon them or merely for the general good? It might seem that the answer should be the former not the latter, if only because, in dealing with workers compensation, the statute as a whole may be said to exist for the protection and benefit of a limited class within the wider community, comprising those who sustain work-related injury and are thereby incapacitated for work. But that is too quick an answer. While it must be acknowledged that the Act as a whole is concerned to deliver compensation to injured workers during incapacity, there is more to it than that.

9. First, in so far as the Act is concerned to deliver compensation, there is an elaborate structure set up for the enforcement of such rights as are given in that respect. Over the years since this statute was first passed in 1985, a number of changes have been made in the way in which the worker may enforce his entitlement to benefits and I do not detail them all. At the time now in question, there was a WorkCare Appeals Board to review decisions of the Accident Compensation Commission affecting entitlement (s.118) and the worker had a right to proceed further in certain circumstances to the Accident Compensation Tribunal (s.119) which was established with exclusive jurisdiction "to act as court" (s.51). There was also a limited right of appeal to the Supreme Court on a question of law raised during the proceedings before the Tribunal (s.61(3)). A worker who considered himself to have some entitlement to compensation which was going unrecognised was therefore not denied a remedy; far from it - yet nothing in that scheme for enforcement suggested that the worker had the right to sue the employer for the provision of employment according to s.122. The lack of any other right to pursue enforcement might be thought to tend in favour of implying a right to sue for damages for breach of the statutory duty imposed by s.122(1), were it not that the worker appears to have been given a right to proceed for benefits when such was intended.

10. Secondly, and more importantly, while the Act is concerned to deliver compensation to workers who are incapacitated by work related injury, it is equally concerned to set fair limits to such compensation and, as well, to cast the burden of such compensation on employers as a group in relief of the public purse. In former days, the latter was achieved by requiring employers to insure; nowadays it is achieved by a compulsory levy on employers, the imposition of which forms a large part of this statute: see Part VII. In that context the setting of due and proper limits to the worker's entitlement to compensation is important to the integrity of the scheme as a whole, if it is to continue to function as intended; and if on further consideration s.122 is seen to be no more and no less than a cog in this part of the overall legislative scheme, it may fairly be said (as it was in Hague and X) that s.122 was enacted primarily for the general good than for the benefit of any particular persons or class of persons. And such, it seems to me, is the case.

    The statutory context of s.122

11. For present purposes the statutory context of s.122 is best seen in Reprint No.2 of the Accident Compensation Act (a reprint to 5 March 1990), for by and large the Act was in that form at the relevant time. Basically, of course, a worker was (as now) entitled to compensation once suffering an incapacity for work which results from or is materially contributed to by a work-related injury (s.93). During incapacity, the worker was entitled to weekly payments (s.93A). Application for compensation had to be made in the prescribed form (s.103) and it was an offence for an employer to refuse to receive the claim or to dismiss the worker because he had given notice of injury (s.108). Generally speaking, a claim for weekly payments had to be dealt with by the employer within five days after receipt and, if not accepted, forwarded to the Accident Compensation Commission which was to accept or reject the claim within 28 days (s.109). Once weekly payments commenced, alteration or termination was regulated: see for example ss.111, 111A and 112.

12. By virtue of s.113(1), weekly payments could be terminated or reduced if the Commission considered that "a worker unreasonably did not accept ... an offer of suitable employment". Weekly payments might also be terminated if the Commission considered that a worker who accepted an offer of suitable employment did not actively take the employment up or, upon taking it up, made no genuine attempt to carry out the work (s.113(6)). On the other hand, if a worker remained incapacitated he or she had to continue supplying certificates of incapacity so long as entitlement to weekly payments lasted (s.114). Decisions of the Commission concerning entitlement to weekly payments were, broadly speaking, reviewable by the WorkCare Appeals Board (s.118) and (under s.119) by the Accident Compensation Tribunal.

13. It will be recalled that in this case the decision that the appellant was entitled to weekly payments of compensation was made by the WorkCare Appeals Board. Under s.121(1), upon the Appeals Board so determining, weekly payments had to commence within seven days and all outstanding weekly payments were to be paid. Under s.121B, where a worker was entitled to weekly payments, the Commission was required to make such payments to the worker's employer, who was to pay them to the worker. (In this section "employer" meant a person who was still or was formerly an employer of the worker and who the Commission determined was to be the employer for the purposes of the section.) Over-payments of compensation were made recoverable by s.121E.

14. It is obvious from this brief sketch that entitlement to compensation was dependent upon continuing incapacity for work. Return to work marked the end of weekly payments, or at least some reduction in amount. It was in that context that s.122 required an employer to provide employment for the worker, of the type described in the section, if the worker had some capacity for work. Under s.123, when a worker who had been receiving weekly payments for total incapacity returned to work, the Commission was to be notified, as also where there was any change in the weekly earnings of a worker in receipt of weekly payments for partial incapacity. To my mind it is plain that s.122 was part of the general scheme for ensuring that the worker's entitlement to weekly payments did not simply drift on inappropriately and without warrant. Because a return to work could end the payments altogether, s.113 made provision for the unreasonable rejection of an offer of employment and s.122 required the employer to provide employment.

15. Of course it can be said that a return to work is in the best interests of the worker, but that is not to say that provisions such as s.113 and s.122 were enacted for the purpose of conferring a benefit on the worker. To my mind they were not. They were enacted instead in order to ensure that compensation, once weekly payments had became payable, did not run on unchecked. The entitlement was to end at a fair and proper time and s.122 was enacted for that purpose. It was enacted to limit entitlement, not to benefit the worker - and I cannot imagine a greater contrast with the legislation considered in Owen; it might be thought closer to that in Byrne. It follows that the statute evinces no intention that the employer should be liable civilly to the worker, should the employer fail to comply with s.122. The employer is to be liable only for the penalty prescribed.

1. Thus far I have dwelt upon the Act as it stood in 1990 and 1991, in consequence of the substantial amendments made by Act No.64 of 1989: the Accident Compensation (General Amendment) Act 1989. The Act as it was before those amendments can be seen in reprint No.1 (a reprint to 1 December 1987) and the scheme of the Act in that form confirms what I have already said. Under the Act as it was then, weekly payments came to an end, according to s.112, if the Tribunal considered that a worker unreasonably did not accept an offer of employment, unless the Tribunal otherwise determined. According to s.113, except as provided by the Act weekly payments were not to be terminated or altered unless, inter alia, "the worker has actually returned to work". Under s.114 the Tribunal might end weekly payments, if satisfied, inter alia, that the worker was not incapacitated. According to s.114A, weekly payments might be suspended, if the worker did not have a current certificate of incapacity. And by s.122 as it then was, the employer had to notify the Commission when a worker who had been receiving weekly payments for total incapacity returned to work or if there was a change in the weekly earnings of a worker who had been receiving weekly payments for partial incapacity. (That provision became s.123 in consequence of the 1989 amendments.)

2. In the Act as it stood before the 1989 amendments, between ss.112 and 113 was found s.112A, which was the precursor to that s. 122 with which we are directly concerned. Though its position in the statute was different, the content of s.112A was the same as the later s.122, save that the penalty fixed for non-compliance was then only 15 penalty units (in contrast to 150 penalty units when it became s.122). The obligation cast upon the employer to provide employment was thus found immediately following a section providing that weekly payments should end if the worker unreasonably failed to accept an offer of employment (s.112) and immediately before a section (s.113) providing that weekly payments should not be terminated or altered unless, inter alia, the worker returned to work. In this context, it seems even more clear that the purpose of s.112A was to ensure that weekly payments did not run on unchecked but came to an end (or were reduced) by the provision of suitable employment.

3. Although of less immediate interest because of their doubtful worth in construing the Act as it stood at the relevant time, I mention for completeness the substantial amendments which were made to the Act by Act No.67 of 1992 (the Accident Compensation (WorkCover) Act 1992) which did away with WorkCare and substituted WorkCover, abolishing the Accident Compensation Tribunal and transferring its jurisdiction to the County Court. The objects of the legislation were restated and, by s.38, the penalty in s.122(1) was further increased, this time to 250 penalty units. The Victorian WorkCover Authority was established in place of the former Accident Compensation Commission and s.122(2) was amended. Instead of providing that sub-s.(1) "does not apply if the employer shows that it is not practicable" to provide employment as required, it was now provided as follows:-

   "Sub-section (1) does not apply if the employer can demonstrate to the Authority's satisfaction that it is not possible for the employer to provide suitable employment in accordance with that sub-section."

   As at present advised, I should have thought that if there was any civil liability arising in the employer under s.122(1) upon non-compliance, that civil liability should be read as qualified by subs.(2): in other words, I think the minority judgment of Windeyer, J. in Sovar (in which the legislation was altogether different) more apposite to s.122 than the majority judgments. But if so, s.122(2) points against the existence of civil liability; for it would be awkward indeed to recognise a liability as between employer and worker which depended upon something that the employer might or might not demonstrate to the satisfaction of a third party, the Authority. It is true that the Accident Compensation (Amendment) Act 1994 omitted the penalty from s.122, but that was merely in order to shift it to a new s.242(1). That the statute evinces an intention not to create additional civil liability is perhaps strengthened even further by the amendments that were later made to s.122, by s.31 of Act No. 7 of 1996 (the Accident Compensation (Amendment) Act 1996). Be that as it may, I place no weight on the changes made to the statute after the relevant time. My conclusion in no way depends upon them.

   Conclusion

4. For the reasons I have given, I think that there is no basis for supposing that, if an employer fails to perform the duty laid upon it by s.122 it not only is liable to the penalty fixed for non-compliance (subject of course to subs.(2)), but is also liable to the worker in civil proceedings for breach of statutory duty. That must be the end of the appellant’s claim for damages, quite apart from any other difficulties arising because the relief is sought against the Crown. According to the appellant’s pleading as it stands, as an alternative to damages he seeks an order compelling his employer to provide employment according to s.122(1) (under paragraph (a) or alternatively under paragraph (b) of subs.(1)) and again there are difficulties in seeking such relief. When this was pointed out in argument the appellant indicated a willingness to amend his pleading, if permitted, to seek only a declaration of right, as is sometimes done to circumvent difficulties inherent in suing the Crown. But two things may be said of that. First, I very much doubt that declaratory relief would be granted here as matter of discretion (even if there were jurisdiction to do so, as to which I say nothing). If, as I think, there is no civil liability in an employer (any employer) for default under s.122(1) it is difficult to see why the Court should grant a declaration of "right" on the prayer of a worker who in an ordinary case could not establish any cause of action for damages for breach of statutory duty. If it be said that that the declaration might go in lieu, not of damages, but of mandatory relief, why should mandatory relief be considered at all, given that s.122 was not intended, on my analysis, to create a private right in the individual worker but only to make it an offence for the employer not to comply? As I see it, the breach of statutory duty of which the appellant complains “gives rise to no cause of action in private law”, to use the words of Lord Hoffman in O’Rourke v. Camden London Borough Council [1998] A.C. 188 at 197, and that in itself denies the appellant any of the relief he claims in this proceeding.

5. On the appeal, no separate argument was advanced in aid of any particular remedy. Indeed little attention was given to the form of the relief to which the appellant might be entitled, for the appeal was fought over whether s.122 created any private right to sue for damages for breach and, if it did, whether the employer was shown in fact to have been in breach. As a result we heard no argument on what might well have proved the particular difficulty of framing relief by way of injunction or declaration by reference to s.122, given (for instance) the nature of the duty imposed on the employer by s.122, its uncertain duration and the time which has elapsed since the duty first arose (supposing it arose at all) and, of course, the terms of s.122(2). Would an injunction have gone to compel performance of the duty imposed by s.122(1) without reference to subs.(2) and so long after the default in performance? Would any declaration have been of present entitlement to the providing of employment (whatever “provide” might mean), or only to past entitlement, casting back to the time when it was first known that the appellant had some capacity for work? Fortunately these questions need not now be answered, for, as I apprehended it, the appellant was seeking relief at all only in aid of the private right of action that he asserted. It suffices then that the appellant failed to establish the right of action upon which his claims depended.

6. That the appellant’s failure in that regard disentitles him to any relief in the circumstances of this case is borne out by the approach taken in other cases. Thus, in O’Rourke, the plaintiff sued a local council unsuccessfully for damages for failing in its statutory duty to provide him with housing. The House of Lords restored the decision at first instance to strike out as groundless the plaintiff’s pleading of a private right of action, reversing the Court of Appeal’s decision and overruling that Court’s earlier decision in Thornton v. Kirklees Metropolitan Borough Council [1979] Q.B. 626 (a decision to which we were referred by the appellant), while at the same time approving and applying Cocks v. Thanet District Council [1983] 2 A.C. 286 in which the plaintiff had claimed a declaration, injunction and damages on the basis that he was owed a private law duty, but was refused all relief when he failed to establish that the statute created any private right of action. A like approach may be seen, too, in Stubbs v. N.R.M.A. Insurance Ltd. (1997) 42 N.S.W.L.R. 550, a case to which Mr. Dowling referred us (and which incidentally demonstrates also the possible difficulties of framing satisfactory relief by way of injunction or declaration: see especially at 572 per Powell, J.A.) The appellant, having failed here to establish that s.122 creates any private right of action for damages for breach, fails also in his claims for injunction and (if it were permitted to be raised) a declaration.

7. The appeal should be dismissed.

CALLAWAY, J.A.:

1. On 29th July 1993 the appellant filed a writ in the County Court claiming orders compelling the respondent to provide employment for him in accordance with s.122(1)(a) or (b) of the Accident Compensation Act 1985, alternatively damages, and costs and general relief. After a trial occupying four days the learned trial judge held that s.122 required timely notice to the employer and that that had not been given. His Honour therefore gave judgment dismissing the proceeding. It is against that judgment that the present appeal is brought. The appellant contends that there was no need to give notice to the respondent, alternatively that such notice was given. He seeks an order remitting the matter to the County Court for further hearing.

2. The appellant joined the Law Department in 1967 at the age of 17. He resigned in 1970 but re-joined in 1974. He then remained with the Department or its successor until 1991, when he was the County Court Civil Listings Assistant Registrar. By letter dated 7th February 1991 addressed to the Registrar of the County Court he gave notice of his resignation from the Victorian Public Service. His resignation was accepted with effect on 3rd March 1991. That date was chosen to take account of recreation leave that was due to him. He was paid the benefits appropriate to voluntary termination, including a refund of superannuation contributions in the sum of $35,817.31.

3. On 8th November 1991 the appellant's solicitors wrote to the Personnel Officer of the Attorney-General's Department in the following terms:

   "We advise that we act on behalf of the abovenamed who resigned from his position of County Court Civil Listings Assistant Registrar on the 7th February 1991.

   We are instructed by our client to advise that he wishes to withdraw his resignation and be reconsidered for employment in the Department.

   The reason for this is that medical evidence now indicates that the resignation was made at a time when he was not capable of giving rational consideration to the implications of his decision.

   We would be grateful if you could contact the writer to advise what steps can be taken by Mr. Gardiner to achieve reinstatement."

   The appellant had been suffering from bipolar affective disorder since at least 1975.

4. That letter was formally acknowledged on 21st November 1991. On 22nd January 1992 the Manager, Personnel Review and Development of the Attorney- General's Department advised that the appellant's resignation was regarded as effective as at 3rd March 1991 and was not able to be withdrawn. Accordingly, he said, it was not possible to reinstate the appellant's employment in the Department. On 5th March 1992 there was a determination of the WorkCare Appeals Board, referred to below, which was favourable to the appellant. On 25th August 1992 the appellant's solicitors wrote to the Attorney-General's Department, saying that the appellant's resignation had been vitiated by his illness, that he had recovered sufficiently to return to work and that the Department was obliged to provide him with employment pursuant to s.122.

5. At all relevant times s.122 of the Accident Compensation Act read:

   "122. (1) If within the period referred to in sub-section (3) after a worker commences to be entitled to receive weekly payments in respect of an injury arising out of or in the course of employment with an employer -

   (a) the worker no longer has an incapacity for work, the employer must provide employment for the worker in a position which is the same as or equivalent to the position which he or she held before the injury; or

   (b)     the worker has a partial incapacity for work, the employer must provide suitable employment for the worker.

   Penalty: 150 penalty units.

   (2) Sub-section (1) does not apply if the employer shows that it is not practicable for the employer to provide employment in accordance with that sub-section.

   (3) For the purposes of this section, the period for the purposes of sub-section (1) after a worker commences to be entitled to receive weekly payments is the period of 12 months or the sum of the periods not exceeding, in the aggregate, 12 months first occurring after the injury during which the worker has an incapacity for work."

   That section was inserted in the Act by the Accident Compensation (General Amendment) Act 1989. It replaced s.112A, which had been inserted by the Accident Compensation (Amendment) Act 1987. As to the expression "Penalty: 150 penalty units", see s.97 of the Penalties and Sentences Act 1985 and, on and after 22nd April 1992, s.111 of the Sentencing Act 1991.

6. When I refer to s.122 in this judgment, I shall be referring to the section in the form set out in [48] above. There have been subsequent amendments but, on the view I take of the case, it is unnecessary to mention them.

7. Mr Dalton advanced two principal submissions. The first was that, putting to one side the second limb of sub-s.(3), s.122(1)(a) imposed an obligation on an employer to provide employment of the kind described in that paragraph if, within 12 months after a worker commenced to be entitled to receive weekly payments in respect of an injury arising out of or in the course of employment with that employer, the worker no longer had an incapacity for work. Subject to sub-s.(2), that was an absolute obligation. It mattered not whether the worker had requested such employment or whether the employer knew that the worker no longer had an incapacity for work. Accordingly no notice from the worker to his or her employer was required. Section 122(1)(b) was to be construed in a similar fashion.

8. I do not accept that submission. The natural construction of s.122(1) is that the employer must be aware that the worker no longer has an incapacity for work or has only a partial incapacity. An employer cannot be expected to provide employment of the kind described in paragraph (a) or (b) until one or other of those conditions is satisfied. So to construe the section is consistent with its being a penal provision. That does not mean that a stubborn or obtuse employer can escape liability by saying that it was not aware of the worker's recovery or partial recovery if it was aware of facts from which it should have drawn that conclusion.

9. There is no need to decide in this case whether the employer's becoming aware of the worker's recovery or partial recovery is sufficient on its own to enliven the employer's obligation, so that an unsolicited offer of employment must be made, or whether some form of claim or request must also be received. The employer's obligation is to provide employment but s.113, which was also in force at all relevant times, provided that weekly payments might be terminated or reduced if a worker unreasonably did not accept an offer of suitable employment. Section 113 does not, however, resolve the question whether the worker must first invoke his or her rights under s.122. A construction requiring an unsolicited offer might be more consistent with the general law of employer and employee and with the object of the legislation to encourage an early return to work if the respondent's second contention referred to in [63] below is accepted.

10. Again putting to one side the second limb of sub-s.(3), the period of 12 months after a worker commences to be entitled to receive weekly payments in respect of an injury arising out of or in the course of employment with an employer is, so far as the express words of s.122 are concerned, simply the period within which the worker must recover or partially recover. Although the true construction of the section is that the employer must become aware of the recovery, it does not say that that awareness must be acquired within any particular period. One possibility is that, so long as the worker recovers or partially recovers within the 12 months, the employer's obligation is enlivened if it becomes aware of that fact at any time thereafter. Another possibility is that the employer must become aware of the worker's recovery or partial recovery within a reasonable time thereafter. I do not think that either of those solutions is open, especially to a court whose task is to construe the legislation rather than to supplement it. The "hard case" of a worker who recovers on the 365th day just has to be accepted. In agreement with the learned trial judge, I would hold that not only must the worker recover or partially recover within the 12 months but the employer must also become aware of that fact within that period.

11. Mr Dalton's alternative submission, if the Court should be of that opinion, was that the respondent had become aware of the appellant's recovery or partial recovery within the relevant period of 12 months.

12. A claim for compensation was initially unsuccessful but was upheld by the WorkCare Appeals Board on 5th March 1992. The Board decided that the appellant had suffered a deterioration of his bipolar affective disorder arising out of or in the course of his employment and that he had been incapacitated from in or about January 1991. Payments were then made, back-dated to 3rd March 1991. Section 82(1) was amended by the Accident Compensation (WorkCover) Act 1992, but in 1991 it read:

    "82. (1) If there is caused to a worker an injury arising out of or in the course of any employment the worker shall be entitled to compensation in accordance with this Act."

    That would suggest that the appellant became entitled to compensation in or about January 1991, which was the view for which counsel for the respondent contended below. Counsel for the appellant argued that, at least for the purposes of s.122, the appellant "commence[d] to be entitled to receive weekly payments" on 3rd March 1991. As it happens, it is unnecessary to resolve that controversy.

13. Mr Dalton submitted that the respondent became aware of the appellant's recovery or partial recovery by 3rd March 1992 by reason of one or more of five documents. The first was the form the appellant signed in September 1991 claiming accident compensation. It was said that by its nature that invoked the parties' rights and obligations under the Act. That may be so but, far from intimating that the appellant has recovered or partially recovered, the claim form describes the injury that he has suffered. I did not understand counsel to say more than that this document set the scene for the others.

1. The second document was an internal memorandum from the Registrar of the County Court to the Chief Executive Officer dated 16th October 1991. The Registrar said that, when the appellant was well and of sound mind, he was a very productive and capable officer. It was submitted that that "specifically invoked s.122". I do not accept that submission. To my mind the memorandum does no more than discuss, in a supportive fashion, the injury that the appellant has sustained.

2. The third document was the appellant's solicitors' letter of 8th November 1991. The thrust of that letter is that the appellant was ill when he resigned, not that he has now recovered or partially recovered. He may still be ill. The point being made is that his resignation was affected by his illness. A letter of that tenor was insufficient to make the respondent aware that the appellant no longer had an incapacity for work or had only a partial incapacity. At best it implied his belief to that effect.

3. By the time the Manager, Personnel Review and Development of the Attorney-General's Department had replied to that letter, the fourth and fifth documents had come into existence. One was a report by Dr Strauss, a psychiatrist, to the respondent's insurer dated 11th November 1991. Dr Strauss considered that, although the appellant suffered from chronic manic depressive psychosis, his employment had not been a contributing factor. He said that the appellant's condition had significantly improved since he had re-commenced psychiatric treatment. In his opinion the appellant was ready to return to work and a return to work would be advisable.

4. The other document was a report from the appellant's treating psychiatrist, Dr Fitzgerald, dated 9th December 1991. He said that there could be little doubt that the appellant's resignation was "an aberration in a lifelong history of occupational consistency" and that he now seemed to accept the need to continue with lithium medication on a long term basis. In those circumstances Dr Fitzgerald saw no impediment to the appellant's returning to his former employment, provided that he was afforded a short planned settling-in time.

5. The difficulty with both of those reports is that there is no evidence that they were brought to the attention of the respondent on or before 3rd March 1992. It was submitted below, and suggested at the hearing of the appeal, that the knowledge of the insurer was the knowledge of the employer, but s.122 imposes a personal obligation with penal sanctions. In my opinion the employer itself must become aware of the worker's recovery or partial recovery. It is not sufficient that Dr Fitzgerald's report was made available to the insurer and that Dr Strauss reported to it.

6. I do not overlook Dr Fitzgerald's conflicting series of medical certificates. It was conceded that they had not been brought to the attention of the respondent until April 1992. Even without reference to them, the appellant's claim fails on the facts.

7. A notice of contention was filed on behalf of the respondent under Rule 64.17(5). It foreshadowed two principal contentions. The first was that s.122 did not confer upon a worker any right of action for breach of statutory duty. The second was that the section did not apply at all where there had been a mutual termination of the relationship of employer and employee. Questions were also raised, at the hearing of the appeal, about the Crown Proceedings Act 1958 and the availability of declaratory relief against the respondent in lieu of the orders referred to in [44] above. The conclusions I have reached on the appellant's case make it unnecessary to consider those contentions or questions, although I had done so before reconsidering the significance of the medical reports.

8. One cannot but feel sympathy with the appellant, whose resignation was fairly clearly a product of his illness, but for the foregoing reasons I agree that the appeal must be dismissed.