Haddad v The GEO Group Australia Pty Ltd

[2024] NSWCA 135

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Haddad v The GEO Group Australia Pty Ltd [2024] NSWCA 135

Hearing dates:

26 April 2024

Date of orders:

5 June 2024

Decision date:

05 June 2024

Before:

Kirk JA at [1];
Stern JA at [2];
Griffiths AJA at [3]

Decision:

The appeal is dismissed, with costs.

Catchwords:

WORKERS COMPENSATION – Disease injury – Disease contracted by a gradual process – Deemed date of injury – where original claim for compensation sought both weekly payments under s 33 and medical treatment expenses under s 60 of the Workers Compensation Act 1987 (NSW) (1987 Act) – where claim for weekly payments was subsequently withdrawn – whether the operation of s 15(1)(a)(i) and (ii) of the 1987 Act to deem the date of injury depends on whether there is an incapacity for work and a consequential entitlement to claim compensation for economic loss which has resulted from the injury in circumstances where the claim for compensation does not depend upon demonstrating incapacity – whether the limitation period in s 261 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) is inapplicable in the particular circumstances of this case because the appellant abandoned his s 33 claim

Legislation Cited:

Interpretation Act 1987 (NSW) s 33

Police Regulation (Superannuation) Act 1906 (NSW)

Safety, Rehabilitation and Compensation Act 1988 (Cth) s 14

Workers Compensation Act 1987 (NSW) ss 2A, 3(6), 4, 9, 9AA(5), 15, 16, 25, 32A, 33, 34, 44C (repealed), 60, 66, 67 (repealed), Pt 3 Div 2 Subdiv 2, Sch 3 cll 2, 4 and 5, Sch 6 Pt 18C

Workers Compensation Legislation Amendment Act 2001 (NSW)

Workplace Injury Management and Workers Compensation Act 1998 (NSW) ss 4, 60, 74A, 91A, 93(1), 250(1), 252, 254, 259(1) 260(1), 261, 353, Ch 7

Cases Cited:

ADCO Constructions Pty Ltd v Goudappel (2014) 254 CLR 1; [2014] HCA 18

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41

Alto Ford Pty Ltd v Antaw [1999] NSWCA 234

BBY v The GEO Group Australia Pty Ltd [2023] NSWPICPD 60

Carr v Western Australia (2007) 232 CLR 138; [2007] HCA 47

Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55

Gales v Lovett, McCracken & Bray [2008] NSWCA 171

GIO Workers Compensation (NSW) Ltd v GIO General Ltd (1995) 12 NSWCCR 187

Hunter Quarries Pty Ltd v Mexon (2018) 98 NSWLR 526; [2018] NSWCA 178

InghamsEnterprises Pty Ltd v Thoroughgood [2014] NSWCA 166

Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28

P&O Berkeley Challenge Pty Ltd v Alfonzo (2000) 49 NSWLR 481; [2000] NSWCA 214

SAS Trustee Corporation v O’Keefe [2011] NSWCA 326

Stone v Stannard Brothers Launch Services Pty Ltd [2004] NSWCA 277

SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34

Category:

Principal judgment

Parties:

Anthony Haddad (Appellant)
The GEO Group Australia Pty Ltd ACN 051 130 600 (Respondent)

Representation:

Counsel:
B G McManamey/D N Adhikary (Appellant)
P D Herzfeld SC/R P Harvey (Respondent)

Solicitors:
Acorn Lawyers (Appellant)
Moray & Agnew (Respondent)

File Number(s):

2023/336151

Publication restriction:

Nil.

 Decision under appeal 

Court or tribunal:

Personal Injury Commission

Jurisdiction:

Presidential Division

Citation:

[2023] NSWPICPD 60

Date of Decision:

28 September 2023

Before:

Wood DP

File Number(s):

A2-W2285/21

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appeal is from a decision of the Deputy President of the Personal Injury Commission (PIC) which confirmed that the deemed date of the appellant’s injury was 20 January 2017 and that the appellant’s claim for medical treatment expenses was time barred by s 261 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (1998 Act).

The appellant was employed by the respondent as an immigration detention officer at Villawood Detention Centre from 3 August 1998 to 31 January 2001. Subsequently, he worked for various other employers up until the end of 2016, when he ceased working. In January 2017, he sought medical treatment from a forensic psychologist, Dr Henderson, who found that he was suffering from severe PTSD and had symptoms consistent with major depressive disorder. Dr Henderson attributed such psychological injuries to the appellant having witnessed some confronting events during his employment at Villawood Detention Centre.

On 19 January 2021, the appellant’s solicitor made a claim under the 1987 Act for weekly payments of compensation and medical treatment expenses from 20 January 2017 onwards. Having withdrawn his claim for weekly benefits in November 2021, the appellant contended that the Deputy President erred in confirming that the deemed date of injury was the earlier date of 20 January 2017 (the date of incapacity) and not 19 January 2021 (the date of claim).

On appeal, the principal issues were:

1. whether the operation of the alternative deeming provisions in sub-ss 15(1)(a)(i) and (ii) of the Workers Compensation Act 1987 (NSW) (1987 Act) falls to be determined by reference to whether there is evidence that there is incapacity for work and an entitlement to claim compensation based on economic loss (in which case the injury will be deemed to have happened at the time of that incapacity);

2. whether the potential application of s 15(1)(a)(i) can be removed by the appellant abandoning his claim for weekly payments and pursuing a claim for compensation of a kind which does not depend upon incapacity, as is the case with a claim for medical treatment under s 60 of the 1987 Act; and

3. whether the Deputy President erred in preferring Basten JA’s reasoning in Inghams Enterprises Pty Ltd v Thoroughgood [2014] NSWCA 166 to that of Handley AJA in SAS Trustee Corporation v O’Keefe [2011] NSWCA 326.

The Court (Griffiths AJA, Kirk and Stern JJA agreeing) held, dismissing the appeal, with costs:

As to issues (i) and (ii):

1. The determination of which limb in s 15(1)(a) of the 1987 Act applies turns on whether or not the worker has an incapacity that has resulted from the injury, which is a question of fact to be determined by the relevant evidence: at [50], [69].

2. The text of s 15(1) does not make the content of a claim for compensation determinative in selecting which of the two limbs applies: at [70]. Merely because the appellant’s claim was reformulated so as to seek a benefit which does not depend upon incapacity does not mean that the previous evidence indicating that there may have been incapacity can be ignored: at [72]. Since, in this case, on 20 January 2017, the appellant suffered a disease injury that caused both incapacity (in the sense of a reduction in earning capacity giving rise to an entitlement to claim weekly compensation) and also, at the same time, an entitlement to claim medical treatment expenses, that was the deemed date of injury relevant to both claims: at [80].

   Inghams Enterprises Pty Ltd v Thoroughgood [2014] NSWCA 166 considered and applied.

As to issue (iii):

1. The Deputy President was correct to adopt and apply the reasoning in Thoroughgood for the reasons above: at [130]. Some aspects of Handley AJA’s reasoning in O’Keefe appear to overstate the correct position: at [118]. It is only if an entitlement to compensation is unrelated to any incapacity, that the deemed date of injury is the date of the claim: at [105].

   Inghams Enterprises Pty Ltd v Thoroughgood [2014] NSWCA 166; SAS Trustee Corporation v O’Keefe [2011] NSWCA 326; GIO Workers Compensation (NSW) Ltd v GIO General Ltd (1995) 12 NSWCCR 187; Alto Ford Pty Ltd v Antaw [1999] NSWCA 234; Gales v Lovett, McCracken & Bray [2008] NSWCA 171; P&O Berkeley Challenge Pty Ltd v Alfonzo (2000) 49 NSWLR 481 and Stone v Stannard Brothers Launch Services Pty Ltd [2004] NSWCA 277 considered.

JUDGMENT

1. KIRK JA: I agree with Griffiths AJA.

2. STERN JA: I agree with Griffiths AJA.

3. GRIFFITHS AJA: This appeal is from a decision dated 28 September 2023 by Deputy President Wood, a presidential member of the Personal Injury Commission (PIC). The appeal is brought under s 353 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (1998 Act). Under that provision, a party to any PIC proceeding constituted by a presidential member who is aggrieved by a decision in point of law may appeal to this Court.

4. The decision is reported as BBY v The GEO Group Australia Pty Ltd [2023] NSWPICPD 60 (primary decision or PD) (although the now appellant was referred to by a pseudonym in the PIC proceeding, no application has been made for any such order in this appeal). The Deputy President confirmed an earlier decision of a member of the PIC that:

1. the deemed date of the appellant’s injury was 20 January 2017 (which is the date nominated in a letter dated 19 January 2021 written by the appellant’s solicitor as the date from which weekly payments of compensation should commence, noting that in that letter the appellant also made a claim for medical treatment expenses (see ss 33 and 60 of the Workers Compensation Act 1987 (NSW) (1987 Act) respectively)); and

2. even though the appellant subsequently withdrew his claim for weekly compensation, which left only his claim for medical treatment expenses, that claim was time-barred by s 261(1) of the 1998 Act.

5. The central issue is whether, in these circumstances, the Deputy President erred in confirming the member’s decision that the deemed date of injury for the appellant was the earlier date of 20 January 2017 and not 19 January 2021 when the appellant’s claim was lodged. The appellant contends that the Deputy President erred in point of law in finding that the date of injury was determined by the date of the appellant’s incapacity, in circumstances where the appellant no longer made a claim for weekly compensation and where the appellant’s entitlement for payment of medical treatment expenses did not depend upon there being any incapacity. This issue turns on the proper construction of various provisions of the 1987 Act, particularly s 15 (which deems the date of injury where the injury is not what is often described as a “frank” injury, but rather is a disease which is of such a nature as to be contracted by a gradual process).

6. For the following reasons, I propose that the appeal be dismissed, with costs.

7. These reasons for judgment are structured as follows:

1. Background facts summarised.

2. Relevant statutory provisions.

3. The Deputy President’s reasons summarised.

4. The grounds of appeal.

5. Consideration and determination of the appeal.

6. Conclusion.

(a)   Background facts summarised

8. Unsurprisingly, given the limited nature of the appeal, the appellant does not challenge any factual findings. It is important, however, to understand the primary facts because, although the appeal ultimately turns on matters of statutory construction, close attention should be given to the actual circumstances of the controversy and how the relevant statutory provisions are engaged by the facts. It is particularly important to identify relevant background facts which relate to the injury the subject of the appellant’s several claims for compensation and to trace the history of those claims.

9. The appellant was employed by the respondent as an immigration detention officer at Villawood Detention Centre from 3 August 1998 to 31 January 2001. Subsequently, he worked for various other employers up until the end of 2016, when he ceased working.

10. In January 2017, the appellant sought medical treatment from Dr Antony Henderson, a forensic psychologist. Dr Henderson’s brief first medical report dated 20 January 2017 stated that the appellant was suffering from severe and untreated PTSD and also had symptoms consistent with major depressive disorder. The appellant’s psychological injuries were attributed to witnessing some confronting events during his employment at Villawood Detention Centre.

11. On 1 June 2017, the appellant submitted two separate claims for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act). These claims were made under Commonwealth workers’ compensation legislation. The injuries the subject of both of those claims were identified as “PTSD”, “Major Depressive Disorder” and “Anxiety”. The first claim was made against the Department of Immigration and Border Protection. This was on the basis of the appellant’s then belief that the Department was his employer while he worked at Villawood Detention Centre (the appellant was later informed his employer at the Centre was not the Department but the predecessor to the now respondent, which was then known as Australasian Correctional Management Pty Ltd). The second claim for compensation, which was also made on 1 June 2017 and was in respect of the same injuries, related to the appellant’s subsequent employment with another Commonwealth agency, the Australian Securities and Investments Commission (ASIC).

12. On 17 August 2017, Comcare declined liability under s 14 of the SRC Act in respect of the claim against ASIC.

13. On 9 October 2017, Comcare advised the appellant that the respondent in the present proceeding was not a Comcare employer. After receiving legal advice the appellant commenced proceedings in the federal Administrative Appeals Tribunal (AAT), challenging Comcare’s decision to decline liability in respect of his employment with ASIC. He claimed that his employment with ASIC significantly contributed to his ailment.

14. On 7 November 2019, the AAT dismissed the appellant’s claim against ASIC. The Senior Member found that the appellant did not suffer an “injury” as an employee of ASIC and was therefore not entitled to compensation under the SRC Act. The Senior Member found, however, at [165] of his reasons, that the appellant’s employment at the Villawood Detention Centre, together with events relating to certain criminal charges, contributed to a significant degree to the deterioration of what was described as “his pre-existing psychological condition”, which resulted in an incapacity for work. There was no appeal from the AAT’s decision.

15. On 19 January 2021, which is more than one year after the AAT dismissed the appellant’s claim against ASIC, the appellant’s solicitor made a claim under the NSW 1987 Act for weekly payments of compensation (from 20 January 2017 onwards) and medical treatment expenses. The respondent was correctly nominated as his employer. The date of injury was described as having occurred between 3 August 1998 and 31 November 2001 (i.e., during his employment at the Villawood Detention Centre). The appellant’s claim for compensation was described as follows (emphasis in original):

We are now in a position to make a claim for weekly payments compensation and medical expenses and we do so in the following terms:

•   Weekly payments: $3.300gpw (as adjusted by operation of statute) from 20 January 2017 to date & continuing (the [appellant] last worked for Norman, Disney & Young in January 2017, where his wage was $173,000 gpa, plus Super); &

•   Medical expenses: estimated at $25,000 for the same period (see attached schedule of expenses for the treating consultant psychiatrist Dr Antony Henderson, in the sum of $15,093 for the period 20 January 2017 to 15 October 2020).

16. It should be noted that the appellant claimed compensation in the form of both weekly payments and medical treatment expenses in relation to the same psychological injury.

17. Doctor Henderson (who is referred to in the extract at [15] above) provided two medical reports, the cost of which was included in the appellant’s claim for medical treatment expenses. The first report is an email dated 20 January 2017 to Associate Professor Stephen Woods (forensic psychiatrist) who had referred the appellant to Dr Henderson. The thrust of this brief report is described at [10] above. The report was obtained after certain criminal charges were laid against the appellant.

18. Doctor Henderson gave a second medical report dated 27 April 2017, which was requested by the appellant’s legal representatives, again with the criminal charges in mind. Doctor Henderson confirmed his diagnosis of PTSD complicated by comorbid Major Depressive Disorder and Panic Disorder.

19. On 10 June 2021, the appellant filed an application to resolve a dispute with the PIC. The appellant alleged that he sustained a “disease injury” within s 4(b)(i) of the 1987 Act.

20. On 7 July 2021, the respondent’s insurer issued a notice pursuant to s 78 of the 1998 Act. It disputed liability for several reasons, one of which was that the appellant had failed to make a timeous claim for compensation, as required by s 261(1) of the 1998 Act. With particular reference to the appellant’s claim for weekly payments, the insurer outlined its understanding of the appellant’s work history, including the fact that he had ceased work with the insured in 2001. He subsequently worked in various roles until late 2016 when he stopped work. His employment was formally terminated on 17 February 2017 in circumstances where criminal charges had been laid against him. The insurer said that it did not consider that the evidence established that the appellant suffered an incapacity for work as a result of the alleged psychological injury sustained during his employment at Villawood Detention Centre. It disputed that he was entitled to weekly payments at any time from 17 February 2017 onwards. In the alternative, the insurer said that the appellant had an ability to earn employment pursuant to s 32A of the 1987 Act in an amount equal to or above his pre-injury average weekly earnings, such that any entitlement he had to weekly payments would be reduced to nil.

21. On 2 November 2021, the appellant’s claim was listed for conciliation and arbitration in the PIC before Member McDonald, at which time the appellant sought (unsuccessfully) to amend the particulars of injury.

22. It is important to note that, before the arbitration was adjourned, the appellant formally withdrew his claim for weekly compensation, which meant that his claim proceeded only on the basis of the claim for treatment expenses. As will be developed below, the appellant contends that the abandonment of his claim for weekly payments is significant and affects the deeming provision in s 15 of the 1987 Act because he no longer claimed compensation based on incapacity.

23. The appellant successfully appealed Member McDonald’s decision refusing leave to amend the pleadings. The matter was remitted to another member of the PIC.

24. On 24 August 2022, the matter for dispute came before Member Read for determination. The parties agreed that the issue in dispute was whether the appellant’s claim was barred by the time limitations in ss 254 and/or 261 of the 1998 Act. This issue required a determination as to what, on the available evidence, was the date of injury for the purpose of s 15(1) of the 1987 Act. On 11 October 2022, Member Read issued a Certificate of Determination, stating that the appellant’s date of injury was 20 January 2017 (deemed).

25. Member Read rejected the appellant’s submission that the PIC should ignore the fact that his claim lodged on 19 January 2021 was also made in respect of incapacity for work resulting from the injury. Member Read said that while the application for weekly benefits compensation had been discontinued, in determining the date of injury for the purpose of s 15(1), he could not ignore the fact that it was part of the 2021 claim. He said at [54] of his reasons that s 15(1) “refers to the making of a claim for compensation with respect to the injury, not the prosecution of such claims in the Commission”. He added that the claims for weekly benefits compensation and medical treatment expenses were made on the same date and were “inextricably connected”. He concluded at [72] that the deemed date of injury was the first date of incapacity arising from the psychological injury, i.e., 20 January 2017.

16. Accordingly, the appellant was not entitled to compensation for medical treatment expenses because his claim was not made within the six month period stipulated in s 261(1) and none of the relevant exceptions applied.

17. The appeal from Member Read’s decision gave rise to Deputy President Wood’s decision, which is the subject of the current appeal. Deputy President Wood’s reasons for confirming Member Read’s decision are summarised at [52]ff below.

(b)   Relevant statutory provisions

28. Both the 1987 Act and the 1998 Act are relevant (noting that the 1987 Act must be construed as if it formed part of the 1998 Act and, in the event of an inconsistency between the two Acts, the 1998 Act prevails: s 2A of the 1987 Act and see also s 60(2) of the 1998 Act (which is set out at [40] below)). The appellant contended that the legislation as in force at 19 January 2021 is the relevant legislation, reflecting his position that the date of his claim for medical expenses is the deemed date of injury. In contrast, consistently with its position supporting the Deputy President’s decision that the date of incapacity was the deemed date of injury, the respondent contended that the legislation as in force on 20 January 2017 applies. It is unnecessary to resolve this disagreement because it is common ground that the relevant legislation was substantially similar at both points in time. Accordingly, it is convenient to refer to the statutory provisions in force as at 20 January 2017 (for further convenience, I will use the present tense).

1. 1987 Act

29. The term “injury” is defined in s 4 of the 1987 Act (emphasis in original and noting in particular the definition of a “disease injury”):

4   Definition of “injury”

In this Act—

injury—

(a)   means personal injury arising out of or in the course of employment,

(b)   includes a disease injury, which means—

(i)   a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and

(ii)   the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease…

…

30. Part 2 of the 1987 Act, which is headed “Compensation—liability”, contains provisions relating to the liability of employers for injuries received by workers. It includes s 9, which was described by Priestley JA as “the foundation provision of the Act” in P&O Berkeley Challenge Pty Ltd v Alfonzo (2000) 49 NSWLR 481; [2000] NSWCA 214 at [20] (Clarke AJA agreeing). Section 9 establishes the entitlement of a worker to receive compensation from his or her employer, but it does not say what that compensation entails. Rather, that issue is addressed in Pt 3 of the 1987 Act (see at [32] below).

31. Part 2 of the 1987 Act includes ss 15 and 16, which address the circumstances in which an employer is liable to pay compensation in the case of a disease of gradual process (for convenience, disease injury) or the aggravation, acceleration, exacerbation or deterioration of a disease respectively (for convenience, aggravation disease injury). Although ss 15 and 16 are not worded identically, it is common ground that they have a similar effect, such that a judicial authority relating to the proper construction of one may also be relevant to the proper construction of the other. For present purposes, it is sufficient to set out the terms of s 15(1), (2) and (4) (the terms of which are substantially reflected in s 16(1), (2) and (3)):

15   Diseases of gradual process—employer liable, date of injury etc

(1)   If an injury is a disease which is of such a nature as to be contracted by a gradual process:

(a)   the injury shall, for the purposes of this Act, be deemed to have happened:

(i)   at the time of the worker’s death or incapacity, or

(ii)   if death or incapacity has not resulted from the injury—at the time the worker makes a claim for compensation with respect to the injury; and

(b)   compensation is payable by the employer who last employed the worker in employment to the nature of which the disease was due.

(2)   Any employers who, during the 12 months preceding a worker’s death or incapacity or the date of the claim (as the case requires), employed the worker in any employment to the nature of which the disease was due shall be liable to make to the employer by whom compensation is payable such contributions as, in default of agreement, may be determined by the Commission.

…

(4)   In this section, a reference to an injury includes a reference to a permanent impairment for which compensation is payable under Division 4 of Part 3.

32. Part 3 of the 1987 Act, which is headed “Compensation—benefits”, provides for different types of compensation benefits, including for death (s 25); weekly compensation during total or partial incapacity for work (s 33); compensation for the cost of medical or hospital treatment and rehabilitation (s 60); and compensation for permanent impairment (s 66). It is desirable to say a little more about some of those provisions and benefits.

33. Section 33 imposes liability on an employer to pay weekly compensation during a period of total or partial incapacity for work:

33   Weekly compensation during total or partial incapacity for work

If total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during the incapacity.

Note—

Chapter 3 of the 1998 Act (Workplace injury management) provides that, if a worker fails unreasonably to comply with a requirement of that Chapter after being requested to do so by an insurer, the worker has no entitlement to weekly payments of compensation for the period that the failure continues.

34. There are two points to be made about s 33. First, the Note to s 33 refers to the worker’s “entitlement” to weekly payments for compensation. The Note does not form part of the 1987 Act (see s 3(6)), but the concept of a worker’s “entitlement” to weekly compensation is confirmed by the heading to Subdiv 2 of Div 2, Pt 3: “Entitlement to weekly compensation”. The concept of a worker’s “entitlement” to compensation is also used in some provisions of the 1998 Act, most notably in the definition of “claim” in s 4, which is defined to mean “a claim for compensation or work injury damages that a person has made or is entitled to make” (emphasis added) and see also s 60 of the 1998 Act, which is set out at [40] below.

35. Secondly, it is important to note the separate concepts in s 33 of a “total or partial incapacity for work” and an “injury”. The two must be causally related for a worker to be entitled to receive weekly compensation payments during the worker’s incapacity. The term “injury” in this provision necessarily includes both a “frank” injury and a “disease of gradual process” (see the definition of “injury” in s 4 of the 1987 Act).

36. Division 3 of Pt 3 of the 1987 Act contains provisions relating to the employer’s liability to pay compensation for, broadly speaking, medical treatment expenses. Section 60(1) provides:

60   Compensation for cost of medical or hospital treatment and rehabilitation etc

(1)   If, as a result of an injury received by a worker, it is reasonably necessary that—

(a)   any medical or related treatment (other than domestic assistance) be given, or

(b)   any hospital treatment be given, or

(c)   any ambulance service be provided, or

(d)   any workplace rehabilitation service be provided,

the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).

…

37. It may be noted that the employer’s liability to pay for medical treatment depends upon the causal relationship between the treatment and injury. This contrasts with the liability to pay weekly compensation under s 33 where there is a requirement of incapacity for work.

38. Division 4 of Pt 3 of the 1987 Act provides for compensation for non-economic loss. It includes s 66(1), which confers an entitlement to compensation for permanent impairment benefits (which entitlement does not depend upon incapacity):

66   Entitlement to compensation for permanent impairment

(1)   A worker who receives an injury that results in a degree of permanent impairment greater than 10% is entitled to receive from the worker’s employer compensation for that permanent impairment as provided by this section. Permanent impairment compensation is in addition to any other compensation under this Act.

Note—

No permanent impairment compensation is payable for a degree of permanent impairment of 10% or less.

…

1. 1998 Act

39. Turning now to the 1998 Act, s 4(1) contains an inclusive definition of the term “incapacity” (emphasis in original):

Incapacity includes a disfigurement that is sufficient to affect the earning capacity of a worker or a worker’s opportunities for employment.

40. Part 1 of Ch 4 of the 1998 Act is headed “Compensation—general”. Section 60, which is in this Part, makes express reference to the concept of “a worker’s entitlement to compensation” in the context of the 1987 Act. It provides:

60   Liability, benefits, common law and other matters

(1)   Provisions relating to a worker’s entitlement to compensation, the benefits payable, common law remedies and other matters are contained in the 1987 Act.

(2) The 1987 Act is, by the operation of section 2A of that Act, to be construed as if it formed part of this Act.

…

41. Part 2 of Ch 4 of the 1998 Act is headed “Compensation—claims and proceedings”. Division 2 of Pt 2 of the 1998 Act deals with the administration by insurers of claims for compensation or damages, including the obligation of an insurer who admits liability to pay compensation promptly (s 74A).

42. Division 4 of Pt 2 applies to “existing claims” (s 91A), which is defined in s 250 as a claim for compensation that is made before the commencement of s 250 (being 1 January 2002) or a related claim that is made or entitled to be made (whether before or after the commencement of s 250). It contains special provisions concerning weekly payments of compensation. Subject to certain exceptions, weekly payments of compensation must commence as soon as practicable (but not later than 21 days after the claim for compensation is duly made (s 93(1)).

43. Chapter 7 of the 1998 Act deals with “new claims procedures”. A “new claim” is defined in s 250(1) as meaning “any claim (made or entitled to be made) that is not an existing claim” (emphasis added). This reinforces the concept of a worker being entitled to make a claim for compensation.

44. Part 2 of Ch 7 provides for giving notice of injury and making a claim. Div 1 of Pt 2, which is headed “Notice of Injury”, applies in respect of injuries received after 1 January 2002 (see s 252). Section 254 requires notice of injury to be given to the employer. Sub-section 254(1) provides:

254   Notice of injury must be given to employer

(1)   Neither compensation nor work injury damages are recoverable by an injured worker unless notice of the injury is given to the employer as soon as possible after the injury happened and before the worker has voluntarily left the employment in which the worker was at the time of the injury.

…

45. The failure to give notice of injury is not a bar to the recovery of compensation if there are “special circumstances” as specified in sub-s 254(3).

46. Division 2 of Pt 2, Ch 7 of the 1998 Act applies to the making of a claim after 1 January 2002 (see s 259(1)). It contains provisions concerning the making of a claim for compensation, including the time within which such a claim must be made. Section 260(1) requires that a claim be made in accordance with the applicable requirements of the Workers Compensation Guidelines. The time within which a claim for compensation must be made is dealt with in s 261, which is an important provision in this appeal. It relevantly provides (emphasis added in text):

261   Time within which claim for compensation must be made

(1)   Compensation cannot be recovered unless a claim for the compensation has been made within 6 months after the injury or accident happened or, in the case of death, within 6 months after the date of death.

(2)   If a claim for compensation was made by an injured worker within the period required by this section, this section does not apply to a claim for compensation in respect of the death of the worker resulting from the injury to which the worker’s claim related.

(3)   For the purposes of this section, a person is considered to have made a claim for compensation when the person makes any claim for compensation in respect of the injury or death concerned, even if the person’s claim did not relate to the particular compensation in question.

…

47. Thus the temporal limitation of six months under s 261(1) applies with reference to when the injury or accident happened. In other words, putting to one side a claim arising from an accident, the temporal limitation for making a claim operates with reference to the time of injury.

48. The failure to comply with the six month time period specified in s 261(1) is not a bar to recovery of compensation if the failure was occasioned by “ignorance, mistake, absence from the State or other reasonable cause” and the claim is made either within three years after the injury or accident happened or the date of death (s 261(4)(b)), or the claim is not made within that three year period but the claim is in respect of an injury resulting in the death or serious and permanent disablement of a worker (s 261(4)(b)).

49. In the case of a disease injury, the limitation period imposed by s 261(1) of the 1998 Act is to be read with reference to s 15(1) of the 1987 Act. The date of injury for a disease injury is deemed to have happened either at the time of the worker’s incapacity or if incapacity has not resulted from the injury, at the time a claim is made with respect to the injury. In the case of both a frank injury and death there is unlikely to be much difficulty in identifying the point in time from which the six month limitation period for making a claim commences. That is to be contrasted with an injury in the nature of a disease injury and the inherent difficulty in identifying a precise point in time when such an “injury” occurred. Sections 15 and 16 of the 1987 Act are plainly designed to address that uncertainty. Those provisions operate to deem the date of injury for such a disease.

50. Putting to one side a claim relating to death, the operation of the two limbs of the deeming provision in ss 15 and 16 turns on whether or not there is an incapacity resulting from the injury. As noted above, when the appellant made a claim for compensation on 19 January 2021 there were two parts to his claim. The first part was a claim for weekly compensation, the entitlement to which depended upon him having a total or partial incapacity for work. The second part of the claim was for medical treatment expenses, the entitlement to which did not depend upon the existence of any incapacity for work. It may reasonably be assumed that the appellant had in mind the difficulties he confronted having regard to the time limitation imposed by s 261(1) when he subsequently abandoned the claim for weekly compensation.

51. Expressed in simple terms, the central issues in this appeal are whether, in the appellant’s particular circumstances: (a) the operation of the alternative deeming provisions in sub-ss 15(1)(a)(i) and (ii) falls to be determined by reference to whether in fact there is incapacity for work which has resulted from the injury (in which case the injury will be deemed to have happened at the time of that incapacity); and (b) whether the potential application of s 15(1)(a)(i) can be removed entirely from the equation by the appellant abandoning his claim for weekly payments and pursuing a claim for compensation of a kind which does not depend upon incapacity, as is the case with a claim for medical treatment under s 60.

(c)   The Deputy President’s reasons summarised

52. The following summary focuses on those parts of Deputy President Wood’s reasons which are the subject of the three grounds of appeal in this Court.

53. The Deputy President noted that s 15 of the 1987 Act applies to “a disease of gradual process” (s 15(1)), while s 16 applies to an injury that “consists in the aggravation, acceleration, exacerbation or deterioration of a disease” (s 16(1)). The Deputy President observed, uncontroversially, that, in ascertaining the deemed date of a disease injury, the authorities dealing with the deemed date of an aggravation disease injury are equally applicable.

54. The Deputy President described the appellant’s main argument as being that because his claim for weekly compensation had been discontinued, meaning that only his claim for treatment expenses remained on foot, he had no relevant “incapacity” within the meaning of s 15(1)(a)(i) of the 1987 Act. The deemed date of injury, the appellant contended, was therefore the date of his claim for treatment expenses (19 January 2021), rather than 20 January 2017, being the date he nominated in his original claim as the date from which he claimed to be entitled to receive weekly compensation payments.

55. The Deputy President found, however, that this argument was contrary to the reasons of Basten JA (with whom McColl and Meagher JJA agreed) in InghamsEnterprises Pty Ltd v Thoroughgood [2014] NSWCA 166, which she viewed as “the most applicable authority”. After noting that Basten JA had considered earlier authorities such as GIO Workers Compensation (NSW) Ltd v GIO General Ltd (1995) 12 NSWCCR 187, Alto Ford Pty Ltd v Antaw [1999] NSWCA 234, Berkeley, and Stone v Stannard Brothers Launch Services Pty Ltd [2004] NSWCA 277, the Deputy President extracted the following parts of Basten JA’s judgment in Thoroughgood:

[46] …the authorities do not stand for the proposition that "the incapacity" referred to in s 16(1)(a) is one which gives rise to an entitlement to weekly compensation payments: rather, the authorities stand for the proposition that the existence of an incapacity must depend upon an entitlement to compensation, being an entitlement of the kind the subject of a claim, that is, one encompassing economic loss.

…

[48] If those passages imply that "incapacity" in s 16(1)(a) is only satisfied where there was a claim, or at least a proven entitlement to claim, weekly compensation, that arguably involves a misreading of the authorities. It ignores the statement of Hodgson JA in Stone that this reasoning applies "if the claim under consideration is for weekly compensation based on incapacity". If the claim is for another form of compensation, as the Deputy President correctly stated… "the relevant deemed date of injury was... the date of the incapacity for which compensation was claimed or entitled to be claimed."

56. The Deputy President rejected the appellant’s submission that s 15(1)(a)(i) did not apply because incapacity was no longer relevant after he discontinued his claim for weekly compensation. The Deputy President said (emphasis added):

[146]   … The appellant's submission is contrary to the observations made by Hodgson JA in Stone and Basten JA in Thoroughgood (discussed above) that where there is a claim other than for weekly payments, the relevant deemed date of injury is the date of the incapacity for which compensation is claimed or entitled to be claimed. It is only where there is no incapacity in relation to the injury for which compensation is claimed that the deemed date of injury is the date the claim is made. The appellant claimed treatment expenses from 20 January 2017 in respect of a disease injury and the appellant was incapacitated from that date because of the injury for which the treatment was required. The appellant clearly had an incapacity for which he was entitled to make a claim for weekly compensation from 20 January 2017. Whether he prosecuted that claim or not, that incapacity arose on the same date as the claim for treatment expenses and in respect of the same injury.

[147]   While Thoroughgood also involved a claim for treatment expenses, the Court of Appeal determined that the date of injury was the date upon which the claim was made because the worker clearly had no economic incapacity flowing from the injury. In the present case, the appellant ceased work because of the injury, establishing an "incapacity" within the meaning of s 15(1)(a)(i). While the circumstances in Thoroughgood established that a claim for treatment expenses can have a deemed date of when the claim was made, that does not mean that that will always be the case. The first step is to enquire as to whether there is an incapacity flowing from the injury for which the compensation is claimed. If the answer is in the affirmative, then the date of the incapacity is the deemed date of injury.

57. After noting the appellant’s reliance on Handley AJA’s reasons in SAS Trustee Corporation v O’Keefe [2011] NSWCA 326, the Deputy President said that those reasons did not “change or add to Basten JA’s observations” in Thoroughgood.

58. The Deputy President noted that the appellant had claimed treatment expenses from 20 January 2017 in respect of a disease injury and that this same injury caused him to be incapacitated and gave rise to an entitlement to claim weekly compensation from that date. The fact that the appellant had made a claim for weekly compensation was itself evidence that went to the existence of an incapacity in the sense of an economic loss. The Deputy President said that the Member was entitled to take into account the AAT decision which recorded that the appellant was incapacitated and had suffered no prior incapacity.

59. In the present appeal, the appellant does not suggest that this finding (that his incapacity entitled him to make a claim for weekly compensation) was made in error. Rather he contends that it should have been disregarded in calculating his deemed date of injury, because it was ultimately abandoned.

60. The Deputy President found that “the appellant ceased work because of the injury, establishing an ‘incapacity’ within the meaning of s 15(1)(a)(i)”. She reasoned that, while the date of claim may be the deemed date of injury in respect of a claim for treatment expenses, this will not always be so where, for example, there is an incapacity flowing from the injury for which the compensation is claimed, as was the case here.

61. The Deputy President concluded that since the appellant had suffered an injury that caused an incapacity, from which arose both a claim (or entitlement to claim) weekly compensation and a claim for treatment expenses, the date of that “incapacity” was the appellant’s deemed date of injury for both claims. This deemed date of injury was 20 January 2017, applying s 15(1)(a)(i). Accordingly, she confirmed Member Read’s Certificate of Determination, including his rejection of the appellant’s claim for medical treatment expenses because it was time-barred.

(d)   The grounds of appeal

62. There are three grounds of appeal, which overlap. Ground 1 is whether the Deputy President was entitled to find that the appellant’s deemed date of injury was determined by the date of first incapacity in circumstances where the claim for weekly compensation was withdrawn and where the entitlement to the payment of treatment expenses did not depend on there being an incapacity.

63. The second ground is whether the Deputy President erred when she found that the appellant’s entitlement to claimed treatment expenses was time-barred by s 261 of the 1998 Act.

64. The third ground is whether the Deputy President erred in preferring Basten JA’s reasoning in Thoroughgood to that of Handley AJA in O’Keefe.

(e)   Consideration and determination

65. It is well to reiterate the need to resolve the controversial issues of statutory construction raised by this appeal in the context of the particular facts relating to the appellant’s claim for compensation. For the reasons that follow, I reject the appellant’s central argument that the facts can effectively be rewritten or replaced simply by the appellant reformulating his claim for compensation and limiting it to a claim for medical treatment expenses under s 60 of the 1987 Act, thereby avoiding altogether the relevance of evidence of incapacity in the context of applying s 261 of the 1998 Act.

Ground 1

66. The contemporary approach to statutory construction focuses on text, context and purpose. Previous judicial authorities may also assist. As noted above, even though the appellant claims that there is no previous judicial authority which is squarely in point, he contends that his construction of the relevant provisions is supported by O’Keefe. In contrast, the Deputy President considered that her construction was supported by Thoroughgood. It will be appropriate briefly to consider these and some other authorities. But each case necessarily turns on its own particular facts and circumstances.

67. I will now explain why the question whether or not the worker has an incapacity for the purposes of the application of the two alternative limbs of the deeming provision in s 15(1) is a question of fact to be determined by reference to all the relevant evidence. The appellant’s primary contention, that the issue falls to be determined simply by reference to the terms of how the worker ultimately formulates their claim for compensation, should be rejected.

1. Text

68. As the long titles to both the 1987 and 1998 Acts make clear, one of their key objects is to provide for compensation in respect of work-related injuries (including death). The notion of a work-related injury (including death) is at the heart of a worker’s statutory entitlement to compensation.

69. Both Acts also recognise that some, but not all, work-related injuries may result in a worker being incapacitated for work. This applies to both frank injuries and disease injuries. In the case of injuries of the latter kind, s 15(1) provides two alternative limbs which operate to deem a point in time when this kind of injury is taken to have happened. Putting to one side the circumstance where the disease results in death, the determination of which limb in s 15(1) applies turns on whether or not the worker has an incapacity. That is a question of fact, to be determined by the relevant evidence.

70. Nothing in the text of s 15(1) or, indeed, elsewhere in either Act, suggests that the deeming provision operates simply by reference to how the worker’s claim for compensation is formulated. The fact that it is a claim for compensation is a critical aspect of the second limb of the deeming provision in s 15(1)(a)(ii) because it constitutes the deemed date of injury where that limb applies. But the text of s 15(1) does not make the content of that claim determinative in selecting which of the two limbs applies.

71. The text of s 15 should be read and understood with an appreciation of its raison d’être. It is necessary to have a provision which deems the date of injury where the injury is one of gradual process because of the intrinsic difficulties which would otherwise arise in identifying a finite and single point in time when such an injury happened given that the disease may not be static. Those difficulties are unlikely to arise when a worker suffers either a one-off frank injury or death. The timing of those events will ordinarily be readily ascertained.

72. In applying s 15 it may be accepted that there are multiple scenarios which reveal whether or not a particular worker may have an incapacity as defined in s 4(1) of the 1998 Act (see at [39] above and as applied and understood in the cases referred to below, particularly Thoroughgood) and may be entitled to make a claim for compensation arising from that incapacity. One scenario is where the worker makes a claim for compensation which in its terms asserts or depends upon incapacity, as was the case here with the appellant’s initial claim dated 19 January 2021, when he sought weekly payments of compensation on the basis of an incapacity which he claimed dated from 20 January 2017. Another possible scenario is where incapacity for work may be apparent from objective facts which are independent of any formal claim or entitlement to claim compensation, such as the worker’s unauthorised absence from work. In the circumstances here, merely because the claim was then reformulated so as to seek a benefit which does not depend upon incapacity does not mean that the previous evidence indicating that there may have been incapacity can be ignored.

73. Another scenario, which is also reflected in the present case, is where the worker has made a claim for compensation under different legislation and it emerges either from that claim or in related proceedings that there is or was an incapacity.

74. These scenarios are not exhaustive.

75. It may be accepted that there will be some cases in which a worker makes a claim for compensation under a provision such as s 60 which does not depend on incapacity and where there is no objective evidence of any incapacity. In that case, the second limb of the deeming provision will operate such that the deemed date of injury is the date of the claim for compensation. But that is far removed from the circumstances here. The background and history of the proceedings in the AAT, as well as the terms of his original claim for compensation under the State’s workers compensation legislation, demonstrate that the appellant himself acknowledged and claimed that he had an incapacity for work in 2017. This was also acknowledged by the appellant’s senior counsel in oral address.

76. Acceptance of the appellant’s construction would give rise to consequences which could scarcely have been intended by the legislature. For example, the appellant’s senior counsel accepted that his client’s construction meant that, in the appellant’s particular circumstances, there was no time limitation within which he could make a claim under s 60 of the 1987 Act in respect of a disease injury. He submitted that the claim could be made in say 20 years’ time. When it was put to senior counsel that this appeared unattractive, he suggested that a constraint is imposed by the requirement under s 60 that any medical or related treatment the subject of a claim must be “reasonably necessary”. That may be persuasive in a case where there is no evidence of incapacity, but that is far removed from the facts here, as has been repeatedly emphasised.

77. Senior counsel also contended that, on the appellant’s construction, it did not automatically follow that an employer would be liable for medical treatment expenses incurred prior to the deemed date of injury, being the date of the claim. He explained that this was because “injury as a matter of law didn’t happen till the date of the claim”. With respect, this is a curious submission. It flies in the face of the appellant’s own claim for medical treatment expenses which related to a period pre-dating his claim (see at [15] above).

78. Although the appellant’s senior counsel disavowed any intention on the appellant’s part of making a further claim for weekly compensation under s 33 in respect of the same disease injury, acceptance of the appellant’s construction would open the door to another worker in circumstances similar to that of the appellant gaming the statutory scheme and avoiding the limitation period in s 261 where there is a disease injury and some evidence of incapacity by deferring the making of a claim under s 33 until after a claim under s 60 is determined. This further highlights the improbable and unattractive consequences of the appellant’s construction.

79. Take this example. A worker suffers an incapacity as a result of a disease on a particular date, which also causes the worker to incur treatment expenses. Section 15(1)(a)(i) of the 1987 Act deems an injury to have occurred on that date for the purpose of a weekly compensation claim, setting a limitation period running for that claim. The time to make that claim has expired. Nonetheless, the worker can choose simply not to make or pursue such a claim at that time before and instead claim only for treatment expenses for the same disease with no limitation period at all, because the injury is deemed to occur on the date of the claim by force of s 15(1)(a)(ii). If that is correct, the worker can, in effect, game the limitation period, and later bring a claim for incapacity related compensation.

80. As explained in Thoroughgood, the correct position is that where a disease injury causes an incapacity (in the sense of a reduction in earning capacity) and at the same time gives rise to an entitlement to compensation under the 1987 Act (whether for permanent impairment or treatment expenses or otherwise), s 15(1)(a)(i) operates to deem the date of injury relevant to any such claim to be the time when the worker suffered incapacity. This does not turn on the framing of the claim by the claimant but rather on the entitlement to claim, as illustrated most clearly in Thoroughgood, as to which see especially at [124] below. It means that since, in this case, on 20 January 2017, the appellant suffered a disease injury that caused both an incapacity giving rise to an entitlement to claim weekly compensation and also, at the same time, an entitlement to claim treatment expenses, that was the deemed date of injury relevant to both claims. That is not altered by the fact that he ultimately abandoned the claim for weekly compensation.

81. It is only where neither aspect of s 15(1)(a)(i) operates that s 15(1)(a)(ii) is engaged. That would be so, for instance, where a disease causes a need for treatment without any reduction in earning capacity. And it would also be so where a disease first causes an incapacity and then, some time later, causes a permanent impairment but no further incapacity. That explains the outcomes in a number of the cases discussed below.

1. Purpose

82. The need for a purposive approach in the task of statutory construction is well established, both at common law and by statute (see s 33 of the Interpretation Act 1987 (NSW)). It is necessary, however, to acknowledge the limitations of a purposive approach in some instances, which is not to say that a purposive approach is entirely inapplicable; it may assist in the construction of individual statutory provisions rather than the statute as a whole. As Gleeson CJ observed in Carr v Western Australia (2007) 232 CLR 138; [2007] HCA 47 at [5], even when a statute contains no broad statement of purpose, its general purpose may be obvious but unhelpful, with the consequence that a purposive approach:

…may be of little assistance where a statutory provision strikes a balance between competing interests, and the problem of interpretation is that there is uncertainty as to how far the provision goes in seeking to achieve the underlying purpose or object of the Act. Legislation rarely pursues a single purpose at all costs. Where the problem is one of doubt about the extent to which the legislation pursues a purpose, stating the purpose is unlikely to solve the problem. For a court to construe the legislation as though it pursued the purpose to the fullest possible extent may be contrary to the manifest intention of the legislation and a purported exercise of judicial power for a legislative purpose.

83. Gleeson CJ’s observations are particularly apposite to workers compensation legislation, which plainly seeks to strike a balance between diverse competing interests.

84. To describe, as the appellant did here, the general legislative purpose of workers compensation legislation as “beneficial” in terms of providing compensation for injured workers is akin to stating that the general legislative purpose of a tax statute is to raise revenue. As the plurality (Hayne, Heydon, Crennan and Kiefel JJ) observed in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41 at [51], an approach which fixes upon “the general legislative purpose of raising revenue carried with it the danger that the text did not receive the attention it deserves”. More specifically, “to accept the beneficial purpose of the [1987 Act] as a whole does not mean that every provision or amendment to a provision has a beneficial purpose or is to be construed beneficially”: ADCO Constructions Pty Ltd v Goudappel (2014) 254 CLR 1; [2014] HCA 18 at [29]. See also Payne JA (Gleeson JA and Sackville AJA agreeing) in Hunter Quarries Pty Ltd v Mexon (2018) 98 NSWLR 526; [2018] NSWCA 178 at [66].

85. The limitations of a purposive approach in construing the legislation in the present appeal is all the more acute given that the legislation is relatively complicated, technical and has multiple purposes. These features serve to highlight the importance of the text in construing particular sections. As the plurality said in Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 at [39] (footnote omitted):

“This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text”. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself.

86. Subsequently, in SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 at [37], Gageler J pithily stated “the task of construction begins, as it ends, with the statutory text. But the statutory text from beginning to end is construed in context…”. These observations highlight the relationship between text and context. Similar observations may be made with regard to purpose. The three concepts intersect.

1. Context

87. As noted, the central issue in this appeal is the identification of the deemed date of the appellant’s disease injury so as to determine whether his claim for compensation was time-barred by s 261(1) of the 1998 Act. The task of statutory construction should also take into account how the competing constructions advanced by the appellant and the respondent operate in the context of the legislation as a whole, with particular reference to provisions which refer to the time when an injury happened. As the plurality stated in Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69]-[70], the “primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute” and a “legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals”.

88. It is sufficient to highlight some of the other provisions in the 1987 Act which operate by reference to a worker’s date of injury.

1987 Act

89. First, there is s 9AA(5), which is directed to identifying which State or Territory jurisdiction applies to a workers claim for compensation. Section 9AA(5) provides (emphasis added):

9AA   Liability for compensation

…

(5)   If no State is identified by subsection (3) or (if applicable) (4), a worker’s employment is connected with this State if—

(a)   the worker is in this State when the injury happens, and

(b)   there is no place outside Australia under the legislation of which the worker may be entitled to compensation for the same matter.

90. The task of identifying when the injury happened is not likely to be difficult where there is a claim for a frank injury and/or for an incapacity which is related to a frank injury. Different considerations arise regarding a disease injury and the deeming provision in s 15(1). Putting death to one side, the deemed date of injury for a disease injury is either the date of incapacity or the date of claim. Those dates could be some distance apart, as is illustrated by the appellant’s own situation where he asserted incapacity from a date four years prior to the date of his claim. On the evidence, his (partial) incapacity may have started even well before then when he was incapable of working at times at the Villawood Detention Centre during the period of his employment there because of the psychological injury. Obviously, in a 20 year time period, some workers will move interstate. Under the appellant’s construction, however, the date of injury under s 9AA(5) will always be the date of claim, irrespective of whether there was an earlier incapacity, as long as the claim is not dependent on incapacity. That outcome sits uncomfortably within the underlying purpose of s 9AA(5).

90. Secondly, there is s 33 which applies where an injury has resulted in total or partial incapacity (see at [33] above). The respondent pointed out that this is one area where there is a difference between the wording of the 1987 Act as in force on 20 January 2017 as opposed to 19 January 2021. At the latter time, the provisions relating to the meaning of pre-injury average weekly earnings (or PIAWE) and its calculation were set out in Sch 3 of the 1987 Act. The time or date of the injury needed to be determined for the purposes of provisions in that schedule, such as cll 2(1) and (2), 4(1) and (2), and 5(1) and (2).

91. Section 33 obliges the employer to make weekly payments of compensation during the period of the worker’s incapacity. The maximum weekly compensation amount is specified in s 34(1). Equations are then set out in other provisions of Subdiv 2 of Div 2 of Pt 3 for the determination of the rate of weekly payments during various entitlement periods. One of the factors used for this purpose is the worker’s PIAWE. In the 1987 Act as in force on 20 January 2017, the PIAWE is defined in s 44C. It is not necessary to set out all of that complex and lengthy provision, other than to note its operation turns in part on the need to identify when the injury happened (see, for example, s 44C(3) which uses expressions such as “at the time of the injury”, and “immediately before the injury”).

92. Applying the appellant’s construction to a worker in the circumstances who has an incapacity resulting from a disease injury who makes a claim under s 60, and then subsequently makes a claim under s 33, their PIAWE will be calculated by reference to the date of claim, not the date of incapacity, which may be many years earlier and is likely to be a lesser amount. Once again, this outcome seems most improbable.

1998 Act

94. Complexity can arise where a disease gives rise to a claim for compensation unconnected with any incapacity. For example, where a disease causes the worker’s death and that leads to a claim by relatives, as in GIO Workers Compensation, discussed further below. But there it was clear that the “death” limb of s 15(1)(a)(i) operated.

95. It is an oversimplification to say that the “incapacity” in s 15(1)(a)(i) is that for which the claimant is claiming. That language, sourced in GIO Workers Compensation, was to direct attention to the fact that the incapacity must be that which is “relevant” or “connected” in some way with the claim. There was no connection to incapacity at all in the case of a claim for death benefits by relatives. Clearly, the “relevant” part of s 15(1)(a)(i) in that case was the “death” limb. But GIO Workers Compensation does not stand for the proposition that whether incapacity is relevant depends on whether it is an element of the claim in fact made.

Analysis of some authorities

96. As noted above, the appellant contended that a series of cases supported his construction of s 15 (particularly O’Keefe) while at the same time claiming that the central issue in the appeal was not squarely addressed by any previous authority.

97. It is convenient to deal with each of the authorities relied upon by the appellant in chronological order.

GIO Workers Compensation

98. The employer’s insurer appealed against an order to pay the widow of the deceased worker compensation under s 25 of the 1987 Act on the basis she was “wholly dependent” upon him at the time of his death. The widow’s claim was in respect of her husband’s death resulting from a melanoma caused by sun exposure during his employment. The melanoma was first detected in November 1983. The worker was treated in December 1983 and he was briefly incapacitated. The melanoma metastasised and the worker died in August 1993. The trial judge found that the widow’s rights accrued at the time of the worker’s death (August 1993), not the date of incapacity (December 1983). The insurer appealed that decision largely because the outcome determined the quantum of liability, which was much lower under the Act as in force in December 1983 (being the date of incapacity).

99. Justice Sheller (Priestley and Clarke JJA agreeing) stated at 195 that the melanoma was a disease injury which was covered by the deeming provision in s 15(1) of the 1987 Act (which was in substantially similar terms to s 15(1) as at both 2017 and 2021). Noting the distinction between death and incapacity in the provision, Sheller JA identified the relevant issue in the particular circumstances of that case as: “…if the injury resulted in incapacity for work and the worker’s death, is it deemed to have happened at the time of the worker’s death or at the time of the worker’s incapacity for work?”. The insurer submitted that the answer, in the case of a worker’s death, was the earlier event, namely incapacity for work as at December 1983. Justice Sheller disagreed and posited what would have happened had the worker, rather than his widow, made the claim:

In the case of the worker’s claim, the injury, being a disease of such a nature as to be contracted by a gradual process, is deemed to have happened at the time of incapacity. I have no doubt that is a reference to the incapacity for which compensation is claimed.

100. The appellant’s counsel contended that it was significant that Sheller JA referred in the second sentence in that passage to “the incapacity for which compensation is claimed” which he said supported his construction which focuses on the terms of the claim. I do not accept that submission. The particular facts in GIO Workers Compensation are far removed from those here and Sheller JA’s observations need to be read in their context.

Alto Ford

101. This case concerned a claim for both weekly and lump sum compensation in respect of an injury to the worker’s eye, which had originally occurred in March 1976. The worker settled a claim with that employer in April 1978 and received compensation for the injury in respect of a 10 per cent loss of sight of the eye. He left that employer in 1985 and thereafter worked as a motor mechanic with six different employers, including Wyong Motors between 1987 and January 1992. He received operative treatment to that eye in 1992, at which point he was briefly incapacitated and he received payments of compensation. He returned to work for a different employer in September 1993.

102. The worker ceased employment as a car mechanic in April 1996 and later, in July 1996, sought both weekly and lump sum compensation.

103. At trial, the worker submitted that he had suffered no incapacity until his gradual loss of vision had deteriorated to a point where he could not carry out pre-injury employment; this occurred as early as January 1992 when the worker left Wyong Motors. He submitted that, having regard to ss 15(1) and (3) of the 1987 Act, his injury was deemed to have occurred at the time the incapacity presented itself or at the time he made a claim for compensation with respect to the injury. The trial judge found that the incapacity arose in January 1992, which was therefore the deemed date of injury pursuant to s 15(1)(a)(i). However, insofar as the lump sum compensation claim for loss of vision under s 66 was concerned, her Honour said that s 15(4) applied. Thus the deemed date of injury was the date when the further claim for loss of vision was made (i.e., 29 July 1996).

104. On appeal, it was held that these findings were “open” to the trial judge. Sheller JA (Meagher JA and Cole AJA agreeing) rejected the employer’s claim that s 15(1)(a) operated to fix one date for the happening of the injury, in this case loss of vision of such a nature as to be contracted by a gradual process, which would deny compensation for further loss after 1992. Sheller JA explained at [25] why the 1987 Act did not work in this way:

… As the evidence shows, by 1996 there was a further 40 per cent loss of vision since a lump sum award was made in 1978. Her Honour fixed the date of injury on the basis contemplated by s15(1)(a)(ii) that incapacity had not resulted from that additional loss of vision and accordingly the appropriate time was the time that the respondent made his claim for compensation with respect to the injury. I can see no error in this approach which accords with the terms of s15. Accordingly, in my opinion, this ground of appeal fails.

105. In Gales v Lovett, McCracken & Bray [2008] NSWCA 171 at [31], Hodgson JA (Ipp JA and Hoeben J agreeing) said that Alto Ford may be explained in terms that the “total additional loss” to the worker after 1992 was a separate injury, which could not have caused the 1992 incapacity since not all of that additional loss had occurred by 1992. That is consistent with my analysis above. It is only if an entitlement to compensation is unrelated to any incapacity, as was the case in Alto Ford, that the deemed date of injury is the date of the claim.

Berkeley

106. As was the case in Alto Ford, there were separate periods of incapacity with different employers. The worker, who was a cleaner, had received compensation under s 33 of the 1987 Act from her previous employer when she was temporarily incapacitated by painful symptoms in her neck and arms. She changed employers but the symptoms persisted until she ceased work altogether in February 1996. Relying on GIO Workers Compensation, the trial judge held that incapacity for the purposes of s 16 of the 1987 Act (i.e. deemed date of injury for aggravation disease injuries) was a reference to incapacity for which compensation was claimed. That date “was the commencement of the worker’s inability to earn the wages she would otherwise have earned but for injury and that this occurred on the day she ceased work and her claim under s 40 commenced”, being 12 February 1996.

107. On appeal, Berkeley argued that the worker had, in fact, been partially incapacitated since April 1993, when she stopped working for 3-4 months, and when a different insurer (MMI) was on risk (at [18]). The appeal turned on when the “incapacity” arose for the purposes of the s 33 weekly compensation claim. Justice Priestley (Clarke AJA agreeing) examined the various references to “incapacity” in Div 2, Pt 3 of the 1987 Act. His Honour focused on s 34 in particular, which concerns maximum weekly compensation amounts, and concluded at [24] that s 34 “makes it plain that incapacity, for the purposes of Division 2, is incapacity falling within the period during which a worker has become entitled to weekly payments of compensation for incapacity” (at [24]). His Honour reasoned that s 34, in terms, militated against Berkeley’s interpretation of “incapacity” at [28]: “…In my view the kind of incapacity it [i.e. s 34] is talking about is the kind for which a worker establishes entitlement to weekly payments of compensation”. The worker established her entitlement to compensation when she was unable to earn the wages she would otherwise have earned but for the injury i.e., 12 February 1996.

108. This reasoning did not consider a claim for compensation which is entirely unrelated to any incapacity. But Priestley JA’s subsequent reasoning (at [32]-[33]) did so, when his Honour upheld the trial judge’s view that the date of injury relevant to the claims for non-economic loss under ss 66 and 67 of the 1987 Act was also 12 February 1996. That is evidently because those claims arose from the same injury and at the same time as the incapacity which his Honour had already addressed. In such a case, the deemed date of injury is the date of incapacity, not the date of the claim.

109. I do not regard Priestley JA’s reasoning as supporting any wider principle than was necessary to address the worker’s particular circumstances in that case. Those circumstances are very different from those here.

Stone

110. Although maintaining there was no case which squarely deals with the central issue in this appeal, the respondent contended that Hodgson JA referred to the issue in Stone at [39], but did not need to resolve the issue. The unresolved issue there was whether s 16(1)(a)(i) cannot apply when the claim does not in any way depend either on death or incapacity. The worker’s claim in Stone concerned a skin damage condition during his employment as a waterside worker and prolonged exposure to the sun. The relevant question on appeal was when the injury, for which lump sum compensation was claimed, occurred. Since the disease injury predated the worker’s employment, the injury was an aggravation disease injury, meaning that s 16(1) of the 1987 Act applied. The appellant’s claim for compensation was made in December 2001 “so that this was the date of injury unless, prior thereto, incapacity had resulted from the relevant injury”.

111. Justice Hodgson (Mason P agreeing) said at [36] that GIO Workers Compensation stood for the proposition “that one must relate the question of the time of death or incapacity under s.16(1)(a)(i) to what is being claimed”. His Honour then explained Berkeley at [37]:

Berkeley Challenge shows that, if the claim under consideration is for weekly compensation based on incapacity, the relevant incapacity for the purposes of s.16(1)(a)(i) is incapacity giving rise to entitlement to weekly compensation. Thus, in such a case, incapacity first occurs when the physical incapacity results in some loss of wages, even if there had previously been incapacity in the [Arnotts Snack Products Pty Ltd v Yacob (1985) 155 CLR 171] sense, not resulting in any loss of wages.

112. In Stone, “each such loss or injury was the disfigurement assessed by [the worker’s doctor] on 5 March 2003” (at [38]). This was because the injury constituted by the disfigurement could not have caused any incapacity, as the appellant had become unfit for work in 1985 due to an unrelated back injury (see at [22] per Hodgson JA; see also at [3] and [10] per Handley JA).

113. These observations in Stone regarding incapacity need also to be read in context. They do not reflect the particular factual circumstances here.

O’Keefe

114. O’Keefe is at the forefront of the appellant’s appeal. It concerned a claim for lump sum compensation in relation to a degenerative condition of the worker’s lumbar spine. He was discharged from the NSW Police Force in July 2006. In November 2007, lump sum compensation was claimed under the Police Regulation (Superannuation) Act 1906 (NSW). The difficulty for the worker was that he was injured before 1 January 2002 i.e. before the transitional provisions in Pt 18C of Sch 6 of the 1987 Act ceased and the Workers Compensation Legislation Amendment Act 2001 (NSW) came into force (which made whole person impairment the basis for assessing lump sum compensation). The trial judge found that the worker’s rights to lump sum compensation accrued when his injury caused incapacity (relevantly, dates in 1988, 1998, and 1999).

115. On appeal, Handley AJA (with whom McColl JA agreed) held that this involved legal error. His Honour framed the issue at [94] as follows:

The question is whether the date of that injury was fixed by the date of incapacity in accordance with s 16(1)(a)(i), as the Judge held, or by the date of the claim for lump sum compensation in accordance with s 16(1)(a)(ii) as [counsel for the worker] contended.

116. In contrast with Basten JA’s dissenting view (see at [37]), Handley AJA adopted the primary judge’s finding that the claim for lump sum compensation related not to a frank injury but to a disease injury, thereby attracting s 16. His Honour referred to GIO Workers Compensation, Berkeley and Stone as standing for the proposition that the Court had decided that “incapacity in s 16(1)(a)(i) means incapacity for which weekly compensation is or can be claimed”. His Honour then added at [96] that these cases also decided that this provision only applies to a claim for weekly compensation and that the provision fixes different dates of injury for different purposes. It is well to set out [96]:

These cases also decided that s 16(1)(a)(i) only applies to a claim for weekly compensation, and that the section fixes different dates of injury for different purposes. In GIO at 196 Sheller JA, who gave the principal judgment said, of the comparable provision in s 15(1)(a)(i), that the reference to incapacity was "a reference to the incapacity for which compensation is claimed". He added (p 196) that whether there was an incapacity or death claim "In neither case does it matter that there were earlier periods of incapacity resulting from the injury."

117. After referring to Alto Ford, Berkeley and Stone, Handley AJA concluded at [101] that these cases “establish that if the claim is for lump sum compensation any earlier claim for weekly compensation is irrelevant”. His Honour added that, for the purposes of s 16(3), any injury by permanent impairment is deemed to have happened when the lump sum claim was made. His Honour then concluded at [104]-[105] that, although there were findings that the aggravation in question also caused short periods of incapacity, that was irrelevant and the deemed date of injury for the claim for lump sum compensation for the aggravation was when the claim was made.

118. Some aspects of this reasoning appear to overstate the correct position. First, the authorities do not support the proposition at [96] that ss 15(1)(a)(i) and 16(1)(a)(i) only apply to a claim for weekly compensation. Nor does the text of those provisions support that proposition. Secondly, the cases do not support the proposition at [101] that, where there is a claim for lump sum compensation, any earlier claim for weekly compensation is always irrelevant. That proposition is stated too broadly. Whether or not an earlier claim for weekly compensation is relevant or irrelevant depends on the facts, as the differing outcomes in Alto Ford and Berkeley reveal. The subsequent reasoning in Thoroughgood (in which McColl JA also sat) expresses the position more accurately.

119. In my view, the obiter observations in O’Keefe which are relied upon by the appellant here should be confined to the facts of that particular case. The circumstances here are quite different, especially having regard to the evidence which identified that the injury the subject of the s 60 claim had produced incapacity.

Thoroughgood

120. This case concerned a claim for treatment expenses, not a claim for weekly compensation. The appellant contended that the case is not about entitlement to compensation, but rather it is about whether a claim had been made.

121. The worker had suffered an injury in 2006 which was identified as the aggravation or worsening of varicose veins in his left leg, resulting from standing for lengthy periods in wet conditions at his place of work. In September 2006, the worker’s doctor suggested that the worker’s employer provide proper boots. The worker made that request and provided a medical certificate. The request was declined which led the worker to resign in October 2006.

122. In January 2012, the worker made a claim for compensation against his former employer under the 1987 Act. The employer resisted the claim, partly because of the delay in making it. An arbitrator at the Workers Compensation Commission found that the worker had made a claim for compensation within the relevant 6-month period (when he requested appropriate footwear in September 2006).

123. On appeal, a Deputy President of the Commission made the same finding, but allowed the appeal, because the worker did not suffer from a relevant “incapacity”; namely, one which established an entitlement to weekly compensation. The Deputy President relied on four cases: GIO Workers Compensation, Alto Ford, Berkeley and Stone in concluding that there could not have been an incapacity when the worker resigned in October 2006 and therefore that could not constitute the deemed date of injury. But this was not dispositive because there were other possible deemed dates of injury and the matter was remitted on that basis.

124. On appeal, Basten JA (McColl and Meagher JJA agreeing) concluded that the Deputy President had “misread” the authorities. The following reasoning is challenged by the appellant here (emphasis added):

[46] …the authorities do not stand for the proposition that “the incapacity” referred to in s 16(1)(a) is one which gives rise to an entitlement to weekly compensation payments: rather, the authorities stand for the proposition that the existence of an incapacity must depend upon an entitlement to compensation, being an entitlement of the kind the subject of a claim, that is, one encompassing economic loss.

[47]   The basis on which the Deputy President rejected the finding of the arbitrator appears to have been encapsulated in the following passages:

“69   As Mr Thoroughgood has not claimed weekly compensation, I infer that, like Mr Stone, he could not do so because he had no entitlement to that compensation, presumably because he suffered no economic loss as a result of his aggravation injury.

…

73   Just as no claim for weekly compensation was made in Stone, Mr Thoroughgood made no such claim. It follows that the incapacity found by the Arbitrator could not support a deemed date of injury of 10 October 2006…”

[48] If those passages imply that “incapacity” in s 16(1)(a) is only satisfied where there was a claim, or at least a proven entitlement to claim, weekly compensation, that arguably involves a misreading of the authorities. It ignores the statement of Hodgson JA in Stone that this reasoning applies “if the claim under consideration is for weekly compensation based on incapacity”. If the claim is for another form of compensation, as the Deputy President correctly stated […] above, “the relevant deemed date of injury was... the date of the incapacity for which compensation was claimed or entitled to be claimed.”

[49]   To the extent that incapacity must be reflected in an entitlement to claim for economic loss, the conclusion that incapacity was not established appears to be inconsistent with the Deputy President’s later conclusion that the claimant had an entitlement to claim (and did claim) compensation for therapeutic treatment. That depended upon there being an injury causing incapacity leading to economic loss. The injury complained of caused a relevant incapacity identified as the swelling, veins popping and pain in the legs. There may have been an issue as to whether that claim gave rise to a deemed date of injury as at 8 or 12 September, rather than 10 October (a point relied on by the respondent), in which case it would have been necessary to make a relatively minor amendment to the application in the Commission, but almost certainly one which could have caused no prejudice to the applicant.

125. At a general level, the reasoning at [49] supports the respondent’s position that the deemed date of injury relevant to a claim for treatment expenses caused by disease which also causes an incapacity is the date of incapacity.

126. The appellant has not persuaded me that the Deputy President erred when she relied on these passages in Thoroughgood in rejecting the appellant’s contention that, because he had abandoned his claim for weekly compensation, there was no relevant “incapacity” for the purposes of s 15(1)(a)(i) of the 1987 Act.

127. For all these reasons, ground 1 should be rejected.

Grounds 2 and 3

128. Ground 2 is that the Deputy President erred when she found that the appellant’s entitlement to claim treatment expenses was precluded by s 261 of the 1998 Act. The appellant relies on the “reasons” for Ground 1 to suggest that the Deputy President “misapplied authority from this Court”.

129. This ground is rejected. Once it is accepted that the appellant’s deemed date of injury was 20 January 2017, he was required to make a claim within the following six months. He did not do so. His subsequent claim for weekly compensation and treatment expenses on 19 January 2021 was nearly four years out of time.

130. Ground 3 is that the Deputy President erred in preferring to follow this Court’s decision in Thoroughgood over its earlier decision in O’Keefe. For the reasons given above in relation to ground 1, the Deputy President was correct to adopt and apply the reasoning in Thoroughgood.

(f)   Conclusion

131. For all these reasons, I propose that the appeal be dismissed, with costs.

**********

Decision last updated: 05 June 2024